Avalon Goldsmith v SPC Ardmona Operations Ltd

IN THE SUPREME COURT OF VICTORIA

AT WANGARATTA

COMMON LAW DIVISION

No. 225 of 2008

AVALON GOLDSMITH	Plaintiff
and
SPC ARDMONA OPERATIONS LTD	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	12, 13, 14, 15, 18 and 19 May 2009
DATE OF JUDGMENT:	5 October 2009
CASE MAY BE CITED AS:	Avalon Goldsmith v SPC Ardmona Operations Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 445

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TORT – Negligence – Duty of care – Psychiatric injury – Impending factory strike –Allegations of threats and intimidation by workers – Accused worker addressed by manager on factory floor –Whether risk of psychiatric injury reasonably foreseeable – Breach – Grievance and dispute resolution process in certified agreement - Whether defendant took all reasonable steps to avoid injury

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr T S Monti with

Mr I R Fehring

Nevin Lenne & Gross

For the Defendant

Mr W R Middleton, SC with
Ms P Cefai

Wisewoulds

HER HONOUR:

The Claim

The plaintiff, Ms Goldsmith, claims damages from the defendant (‘SPC’) for psychological and/or psychiatric injuries allegedly sustained as a result of an incident at work on 12 February 2004, (‘the incident’). She argues that SPC negligently breached its duty of care to her as its employee, causing her injury and resulting inability to work, pain and suffering and loss of enjoyment of life. SPC denies her allegations.

Witnesses

Before stating my findings of fact, I note that, to the extent of any conflict, I generally found the evidence of other witnesses more persuasive than that given by Ms Goldsmith. Bearing in mind that the incident occurred more than five years before the trial and the difficulties all witnesses face in trying to recall events in the past, I nevertheless consider that the persuasiveness of her testimony was reduced by the inconsistencies between it and the histories she gave to others over the intervening period. I also generally found her to be an unimpressive witness.

Findings of fact

Background

Ms Goldsmith was born in New Zealand on 10 May 1961 and is 48 years old. She is about five feet, two inches tall. She came to Australia with her parents at about six years of age. She commenced second form high school studies, but did not complete them. She left school to work as a retail sales assistant at a clothing store for three months and then in a confectionery store.

Ms Goldsmith’s parents separated shortly after she left school and she began living on her own at Dee Why in Sydney. She started using heroin at about the age of 15 and was addicted to that drug for approximately three years. She gave up heroin after her mother intervened. Ms Goldsmith says that she was locked in her room on her eighteenth birthday and ‘went cold turkey’. She has not used heroin since.

Ms Goldsmith then worked for approximately 18 months as a console operator in a service station, before moving to Darwin. She stayed in Darwin for three months, receiving unemployment benefits. She then hitch-hiked from Darwin to McKay in Queensland, for the sake of the adventure and the beach, as she puts it. She worked as a bar maid at a hotel at McKay for several months. Just before Christmas in 1980, she decided to go to Shepparton for the fruit picking season with another young woman.

Ms Goldsmith started seasonal work at the Ardmona cannery at Mooroopna (where the incident was later to take place) in about January 1981, at the age of 19. The Ardmona business was to amalgamate with its competitor, SPC, in about 2001.

During her induction process, she was informed of rules such as that no singlets or nose jewellery or the like were to be worn and that physical fights would lead to instant dismissal.

Ms Goldsmith soon met her future partner, Mr Wayne Collyer, who was known as ‘Redda’ and who also worked at the Ardmona cannery. They started living together at Burnside about 6 weeks after she arrived in the Goulburn Valley. They were still together at the date of the trial. They have a son, born in July 1987, who is now 22 years old and a daughter, born in January 1990 who is now 19.

Ms Goldsmith worked at the cannery for nine months each year and was classed as a long term seasonal worker. In the off-seasons, she cared for her children and visited her parents who ran a bed & breakfast business in the Hunter Valley. At one stage between 1981 and 2004, she stopped work at Ardmona for two and a half years and was employed as a barmaid at the Overlander Hotel in Shepparton.

In 1997, Ms Goldsmith had developed acute hepatitis which she attributes to receiving a tattoo. She was diagnosed with hepatitis C. The Alfred hospital monitors her condition.

Ms Goldsmith first consulted Dr Marion Lockhart, a general practitioner, on 24 October 2002. Dr Lockhart’s clinical notes record her as smoking two joints of marijuana a day. Ms Goldsmith explained the reference stating that she had been smoking the drug for eight years and describing herself as ‘having a puff’. I am satisfied that the account she gave to Dr Lockhart is more probably accurate than that she gave to the Court.

On 31 October 2002, Dr Lockhart administered a test which dealt with matters including Ms Goldsmith’s ability to cope. Ms Goldsmith then said that most of the time things had been getting on top of her and she had not been able to cope at all. She had been unhappy and crying and sometimes had thought of harming herself. She volunteered that she had had suicidal ideation at times and had withdrawn socially. (Initially under cross-examination, Ms Goldsmith denied ever having suicidal thoughts before the incident. When told of the 2002 clinical note, she conceded only that she may have responded affirmatively to a specific question to that effect. This explanation was not persuasive, given that the doctor’s clinical notes record her volunteering the information).

On 31 October 2002, Ms Goldsmith also told Dr Lockhart that she was going to cut down on her then daily marijuana use. The doctor informed her about the depressant properties of the drug. Ms Goldsmith was having marital troubles at the time.

The Alfred hospital reports monitoring her liver condition were provided to Dr Lockhart as her treating general practitioner. They also deal with her alcohol intake. A 5 December 2002 report from the gastroenterologist at The Alfred states that she was then a social drinker who had a history of five years of quite heavy alcohol usage in her 20s. In a 31 July 2003 report, the gastroenterologist noted that Ms Goldsmith was then enjoying ‘significant quantities of beer’ on Saturdays when attending local football matches.

A 5 February 2004 gastroenterologist’s report from The Alfred refers to these matters, noting that Ms Goldsmith had been well since her last visit and goes on to say:

… she has undergone significant psychological hardship with multiple recent deaths in her family. As a result of this social trauma, Avalon has found it difficult to reduce her alcohol intake and continues to binge drink at the rate of approximately once a week drinking 3 to 4 stubbies on each occasion. Avalon states that she does not consume alcohol on other days.

At the time of the incident in February 2004, however, Ms Goldsmith considered herself very fit physically. She was attending a gym at the Mooroopna Leisure Centre a number of times each week. She swam and used exercise equipment. She also practised Tai Bo, a form of kick boxing performed to music.

She also had an active social life. Mr Collyer is a member of a motorcycle club known as the ‘Outlaws’. Ms Goldsmith enjoyed weekend runs as a passenger on the bike and the camping and socialising activities that went with club involvement. She was involved with her son’s football playing and her daughter’s netball. The family travelled with their children to watch them participate in their sports at various places in and around Shepparton. The children both continued at the time of the trial to live at home with their parents at the family home in Mooroopna. Mooroopna is a town of some 6,000 people many of whom work at the SPC cannery and know each other.

Ms Goldsmith had performed numerous jobs at the Ardmona Cannery over the years. After doing process line work, she was put in charge of women working in the `Snack Pack’ area. She worked on most of the machinery and was selected to operate what is known as the `Sleeve-Wrap’ machine which makes cardboard wrapping for 4-packs for Ardmona fruits. Ultimately, she was working on what is described as the `one kilo line’ with other women chosen to run that equipment. Ms Goldsmith enjoyed working on that machine and was proud to have qualified to do so, indeed she had obtained the highest score when tested for work there.

In February 2004, Mr Glen Cox was the factory manager of SPC’s Mooroopna cannery, responsible for operational and engineering issues. His height is also relevant and he described himself as being six feet four inches or approximately 192cms tall. Mr Cox had held the position for between two and three years, having started as a junior projects engineer with Ardmona in about 1986.

By February 2004, there were about 1,000 employees at the Mooroopna site. The vast majority were seasonal workers like Ms Goldsmith who were employed for between a few weeks and nine months each year.

Mr Adrian Parsons, a professional engineer, was the factory production manager to whom Ms Goldsmith’s immediate superior at the cannery reported. He had been employed by Ardmona for about four years in February 2004.

At the end of each season, Ardmona employees were graded in terms of their performance, for the purposes of eligibility for employment in the following season. Ms Goldsmith always received an `A’ rating, except in 2003, when she had been rated `B’ for alleged lack of punctuality. She disputed that allegation in evidence.

Mr Parsons said that ‘on her good days, Ms Goldsmith was a competent machine operator. On other days, she behaved differently. She appeared to upset those around her and occasionally that caused her to be unable to cope and she would go to the first aid centre and often leave for home upset.’

The applicable Certified Agreement between Ardmona Foods Ltd and the relevant unions had been entered into in 2001. It relevantly contained ‘Grievance and Dispute Resolution Procedure’ provisions which included a description of a ‘Disciplinary Process’ in clause 32. Under that provision, the parties first acknowledged ‘the importance of a clear and effective Disciplinary Policy’ as fundamental to efficiency, safety and employee relations and ‘essential to ensure equity and fairness’ when an employee’s conduct or performance gave rise to complaint or concern. Unfair dismissal was forbidden and summary dismissal only to be considered for ‘gross misconduct’. Clause 32.3(i) provided that counselling was an essential part of ‘any performance review for an employee with a work related problem’. The clause went on to state the aim of correcting the problem and preventing its recurrence. Clause 32.2(ii) stated that a verbal warning would be given by the appropriate department manger ‘for any aspects of conduct or inadequate performance which emerges (sic) as a problem’.

In the few months leading up to the incident, Ms Goldsmith had a feeling of ‘things not being alright at work.’ She had also been to three funerals of friends who were under the age of 35 over the Christmas period. One of her son’s friends, who also worked with her, had committed suicide. One of her son’s previous girlfriends had died as a result of a car accident, as had a friend of Ms Goldsmith.

About a week before the incident, Ms Goldsmith had been spoken to about swearing in front of fellow employees. She maintained in evidence that she had sworn, but that her language had not been directed at anybody specific. (She later told Mr John Merrigum, a psychiatric nurse, on 17 February 2004, that she had used poor language at times.)

Just before the incident, Ms Goldsmith had also been spoken to about having her below waist length hair loose when on the factory floor. She maintained in evidence that she had her hat off but was not in the factory at that time. (I make no findings in relation to these matters, save to the extent of her admissions.) Ms Goldsmith responded to the reprimand by going home that night and cutting her below waist length hair to ear level, to avoid further trouble.

For some months in late 2003 and early 2004, there was an Enterprise Bargaining Agreement (‘EBA’) being negotiated between SPC and the Australian Manufacturing Workers’ Union Food and Confectionery Division. A log of claims had been presented by workers and there were issues in relation to pay increases and other conditions. The atmosphere at the site was becoming tense and core issues were still in dispute in February 2004. Ms Goldsmith had voted against a condition which she believed would have had the effect of reducing her period of seasonal work by a month. Regular briefing sessions were taking place and union representatives were being granted access to address the workers on a regular basis. There were approximately five or six union shop stewards at the Mooroopna site.

On the 11 February 2004, the day before the incident, the atmosphere was very tense because the expiry date under the current arrangement was approaching and, if no new agreement had been made (as Mr Cox understood the situation), the union had a right to initiate industrial action.

There were staff meetings on 11 February at 6.00am and 3.00pm. Ms Goldsmith attended each. She made a joke about what she thought was a silly comment by a co-worker at the 6.00am meeting, but otherwise I am not persuaded that she contributed to the discussion. There was concern expressed in relation to the effects of any stoppage on orchardists who needed to pick fruit.

Ms Goldsmith had been quizzed by others about her experience of previous strikes and she had talked about workers being only permitted to call others ‘scabs’ and the indignity involved in standing outside wanting to get in to perform a job.

On 12 February 2004, there was a ‘smoko’ break at 9.00am. Strikes were being discussed. Ms Goldsmith’s unchallenged evidence was to the effect that a worker and former shearer, whom she identified as ‘Karl’, had referred to his experience during the shearers’ strike and had remarked that ‘concrete boots’ should have been given to the New Zealand shearers involved. Ms Goldsmith said that she had then commented in words to the effect of ‘yeah, what about the wharfies?’ and had referred to her reading that wharfies ‘used to kill your missus and your dogs and that (sic)’. There had been laughter and Ms Goldsmith had then wondered aloud ‘if they have got any like that over at SPC’ (referring to the fact of the merging of the Ardmona and SPC businesses and that this was the first strike since it had occurred). She said that other people would have overheard the discussion which she described as not serious or meant to be threatening and ‘a bit of fun’.

Ms Goldsmith’s fellow worker, Ms Merle Frankowicz, gained the impression that Ms Goldsmith was ‘pretty adamant’ about striking. Ms Goldsmith did ultimately vote in favour of the strike.

In the 24 hour period leading up to the incident, Mr Cox had personally received reports that staff were being intimidated and pressured to take industrial action. Four individuals had approached him, in tears, claiming to be frightened and pressured to participate. One very distressed woman reported to Mr Cox that someone had come up behind her, saying that they knew where her children went to school. None of those complaining was prepared to identify the perpetrators to him.

Mr Cox had also been approached by the SPC first aid officer, Ms Jenny McKenna, and the company’s personnel manager, Ms Carol Aynsley, each of whom had also been contacted by concerned employees worried about being pressured to take part in industrial action. They had provided Mr Cox with a list of five names which included that of Ms Goldsmith. According to Mr Cox, those named were seen to be supportive of the union’s cause and were alleged to have been putting pressure on other to participate in strike action.

Mr Cox met with other SPC senior executives. They resolved that he should approach the five women listed, in the presence of a witness, in order to remind them of what had been conveyed generally to staff at meetings, namely, that such behaviour would not be tolerated. Mr Cox took the view that he had a duty of care towards those affected to communicate that message. He felt that the allegations of harassment needed to be dealt with ‘firmly, convincingly and swiftly’.

At about 11.00am on 12 February 2004, the ‘one kilo line’ had broken down. Ms Goldsmith and some 13 others were sent to what was known as the ‘refurbish area’ to work. There were over 30 people working in that area as a result. The refurbish area was a tin warehouse structure with an area of approximately 20,000 square metres. It was situated about 30 metres from operating machines in the main factory. Damaged product was taken there to be refurbished. There was machinery operating in the refurbish area which included a packaging machine, a sugar syrup preparation machine and a cooker. Not all the machinery in the refurbish area operated at the same time, but I accept Mr Cox and Mr Parsons’ evidence that it was a noisy place.

At around 1.00pm, Mr Cox asked Mr Parsons to accompany him to talk to some workers. Mr Cox told Mr Parsons about the allegations that harassing comments had been made to some employees and said that he needed to give the message to those concerned that such behaviour ‘wasn’t on’.

The first person to be approached was Ms Frankowicz. She was called downstairs by her supervisor, Ms Julie Nicca, to see Mr Cox and Mr Parsons. Ms Frankowicz asked if she needed to be accompanied by a union representative and got the impression from Ms Nicca’s reaction that she did.

When Ms Frankowicz came up to Mr Cox and Mr Parsons, Ms Nicca asked her if she needed her representative and Ms Frankowicz replied affirmatively. Ms Nicca left and Ms Frankowicz had taken a step to follow when Mr Parsons stepped in front of her. She also got the impression that Mr Cox reached out to grab her arm, although he did not touch her. She started shaking at that point. Mr. Cox said ‘it’s okay’ and ‘we don’t need him here we can discuss the matter without him’.

Mr Cox told Ms Frankowicz that a few people (whom he did not identify) had told him that she had been intimidating them, by swearing and calling them ‘scabs’. Mr Cox told her that she should know better than to do that to other people. Ms Frankowicz responded that she did know better, adding ‘because people have been doing it to me’. She denied the accusation and said that she would not have behaved in that way. Mr Cox told her that the matter would go further eventually. He said that if what he had said was found to be true, she could be sacked; if not, she would have nothing to worry about. Ms Frankowicz knew from her induction training that the conduct of the type complained about would constitute a sackable offence.

Ms Frankowicz is about five feet four inches tall and Mr Cox, who was about eighteen inches away, leant over, pointing his finger in a way that made her feel as if she were a naughty child. She described him as being fairly aggressive towards her. She said that, whilst he was not speaking loudly, he was not speaking softly either. She ‘practically ran’ back to the line. She started work and began crying and a couple of her fellow workers asked if she was alright. Her supervisor, Ms Nicca, was stationed some 500 feet away. Ms Frankowicz did not suggest that her supervisor had seen her crying. She worked on until a smoko break at about 1.30am and there is no evidence that she did not work out the rest of her shift.

Mr Cox and Mr Parson then approached Ms Lisa Rowlings. Mr Noel Goonan, a shop steward who had been working for 31 years at the cannery was walking by. Ms Rowlings called him over as a witness. Ms Rowlings did not give evidence.

I accept Mr Goonan’s account that Mr Cox was standing, leaning over Ms Rowlings and pointing his finger at her, notwithstanding Mr Cox’s denial and Mr Parson’s evidence on the matter. Mr Cox’s finger was some two or three inches from Ms Rowlings’ face. He told her that it had come to his attention that she had been harassing, abusing and assaulting other women outside the factory. Mr Cox said words to the effect of ‘if it’s found that it’s correct, you will no longer be working for the company’. His voice was raised, but he was not yelling and his demeanour seemed very stern and threatening to Mr Goonan.

Mr Goonan said that Ms Rowlings vigorously denied the accusations. She said to Mr Parsons ‘you know me better than that, Adrian’. After a conversation estimated by Mr Goonan to have taken between four and five minutes, Ms Rowlings returned to the process line.

Mr Goonan then protested to Mr Cox about him speaking to Ms Rowlings. He told Mr Cox that he was engaged in intimidation and standover tactics. Mr Cox responded ‘do you think so, Noel?’. Having been told that there were others to whom he wanted to speak, Mr Goonan accompanied Mr Cox and Mr Parsons when they moved on to speak to Ms Gloria Kerr.

Ms Kerr has since died. She too was about 5 feet tall and Mr Cox leant over and pointed his finger at her face ‘vigorously’ according to Mr Goonan’s unchallenged evidence. He repeated in effect what he had said to Ms Rowlings, namely, that she had been intimidating, abusing and threatening other workers. Ms Kerr began to very obviously shake and cry ‘badly’ according to Mr Goonan. He could see that she was very upset. (Mr Goonan’s allegations about Ms Kerr’s reactions were not put to Mr Cox in cross-examination to afford him the opportunity of responding to them. Nor were they put to Mr Parsons. On the other hand, Mr Goonan himself was not challenged on these matters under cross-examination. In the circumstances, I accept his account.)

Mr Goonan protested to Mr Cox again that his behaviour was intimidating and that it was the wrong place for Mr Cox to be speaking to the women. Mr Cox did not respond.

Mr Cox and Mr Parsons then moved on to speak to Ms Jennifer Leahy, a process worker who was still working at SPC in May 2009. I prefer her account of events to the extent of any inconsistency with the evidence of other witnesses. She was summoned from the line by her leading hand. She was told that Mr Cox wanted to speak to her and she asked Mr Goonan to accompany her. Ms Julie Nicca was also Ms Leahy’s supervisor and was present when Mr Cox spoke to Ms Leahy. Ms Nicca did not give evidence.

Ms Leahy recalled Mr Cox telling her that he believed that she had been intimidating, standing over and threatening other people about going on strike. Mr Cox had said to her ‘that if it’s found to be true, it is a sackable offence’. Ms Leahy described him as speaking very sternly and abruptly and in a threatening manner.

Ms Leahy did not say anything about Mr Cox pointing his finger at her, although Mr Goonan maintained that he had done so. I consider it likely that she would have remembered if she had been affected by the way he held his finger. Ms Leahy was shocked and denied the accusations immediately. Mr Cox told her that if they were not true, she had nothing to worry about.

When Ms Leahy asked Mr Cox to identify those who had told him that she had behaved in this way, he responded that he could not tell her. She said that she walked away, saying that that was not good enough.

When Ms Leahy returned to her line, she cried, being embarrassed and shocked at having been wrongly accused of such behaviour. She was embarrassed because she had been pulled off the line, in front of all her work colleagues, and she had not known why. She said that her colleagues could see but that they could not hear what was happening. Ms Leahy said that she cried for about half an hour, but did not want Mr Cox to see that he had upset her. She said that he would not have seen her crying, but her workmates on either side did and so did her leading hand who approached to see if she was alright.

Ms Leahy agreed that there was tension between management and the workers in relation to the strike which was to take place on 13 February. She said that people were on edge and that she was a bit emotional with regard to the strike. Mr Goonan then asked Mr Cox if there was anyone else he wanted to speak to. Mr Cox identified Ms Goldsmith and they proceeded to the refurbish room at about 1.20pm.

The incident

Mr Goonan tapped Ms Goldsmith on the shoulder to let her know that Mr Cox wanted to see her. He said, ‘Avalon, Glen Cox wants to see you over some alleged intimidation against [your] fellow employees.’

Ms Goldsmith responded that she had not done anything and Mr Goonan told her that she had nothing to worry about. She thought she was to go to one of the upstairs offices or the tea room. She started to walk with Mr Goonan in that direction and saw Mr Cox and Mr Parsons standing between about ten and 20 metres from where she had been working.

Ms Goldsmith described what happened in this way:

I looked at him in the eye. He looked at me. He said ‘I have come to speak to you. I have just spoken to four other women about threats of violence and intimidation against the staff and their family (sic).’[1]

Ms Goldsmith said Mr Cox was pointing at her in a way that indicated a message ‘not to do it’. She said that she had to lean back as he was bending over her.

[1]Transcript 43 line 31 – 44 line 3.

Ms Goldsmith also maintained that Mr Cox had told her that people like her were no longer required to work at the SPC factory, that she should ‘grab her bag’ and that she was under police investigation. She said under cross-examination that Mr Cox had told her that her job was no longer required. Mr Cox denied that he had told her that she was dismissed or that the matter was under investigation, much less police investigation. I found his account more credible than Ms Goldsmith’s.

Mr Goonan maintained that Mr Cox did use the word ‘investigation’, but did not say ‘police investigation’. He had made a note of the incident which had not referred to that word being used, but maintained that he could recall it when giving his evidence. I did not find his evidence on this matter persuasive and preferred that of Mr Cox. I accept Mr Cox’s evidence that he did not use the word ‘investigation’ to Ms Goldsmith, even though he had used that word when summarising the relevant events in an affidavit sworn in the proceeding on 2 January 2007. In any event, I consider it was obvious from what Mr Cox did say that the matter would be investigated.

I am not satisfied that Mr Cox indicated that Ms Goldsmith was to ‘grab her bag’ and leave. This account is inconsistent with her behaviour in ‘clocking off’ after seeing the first aid officer and with what she told her treating practitioners and the medico-legal experts who examined her. I note, in particular, that Ms Goldsmith did not give this account to her general practitioner, Dr Marion Lockhart, when she attended her on the same day. Nor did she refer to being asked to leave on 17 February 2004, five days after the incident, when she made her first visit for counselling to Mr John Merrigum, a psychiatric nurse. (I will refer to Mr Merrigum’s notes later.) Mr Goonan said nothing about such a statement. His evidence was to the effect that Mr Cox said much the same things to each of the women.

Mr Cox said that he told Ms Goldsmith that there had been allegations that she had been using threatening and intimidating language to other employees, that she needed to realise that if that was found to be true she would be sacked and, if not, she had nothing to worry about. I accept his account of what he said, although I am not persuaded that he used the word ‘allegations’.

Ms Goldsmith said that Mr Parsons had told Mr Cox to let her speak. Mr Goonan did not give that evidence, stating that Mr Parsons looked uncomfortable and kept his eyes on the ground. Mr Cox said that he could not recall Mr Parsons saying that and did not think that it had happened. After being pressed further, he went on to deny that Mr Parsons had made the statement. Mr Parsons himself said that he could not recollect making the statement but, under cross-examination, said that he did not deny that he may have done so. Taking all the evidence into account, I am not satisfied that Mr Parsons did say anything to the alleged effect.

Ms Goldsmith maintained that she repeatedly said, ‘no, I didn’t do it; no way, no way.’ She told Mr. Cox that she had not done anything, that she had discussed the strike, but that she had not threatened anybody. Mr Cox responded that if she had not, then she had nothing to fear.

Ms Goldsmith went on to say in her evidence:

And I thought ‘I am not standing here listening to this, I don’t have to listen to this’, and that’s when I turned around and I said to him ‘Glen, if I had a dollar every time someone said I had done something in this factory, after the last few weeks that I had, I would be rich like you’ and he said ‘am I rich, Av?’ and I said ‘so its alleged’.

She said that that was when she walked away and started shaking. She thought that she was having a heart attack and was about to die. She was thinking, ‘my God, my God, everyone is just looking at me’. She said that she tried to walk away, but could not move, as her legs had seized up. She said that she was very, very frightened.

Ms Goldsmith was later to describe the incident to many practitioners as having taken place in the presence of or in front of 30 co workers. There was no evidence of any other workers having observed the incident or hearing the exchange involved. The area was noisy and she maintained that she had walked some ten to twenty metres from her work station with Mr Goonan before they reached Mr Cox and Mr Parsons. I accept that the incident occurred in the presence of her co-workers in the refurbish are only to the extent that they were at least that distance away and the environment was noisy as described. I am not satisfied that her co-workers could hear the exchange, but think it probable that some facing in the right direction may have seen her talking to Mr Cox and the others.

Mr Cox saw that Ms Goldsmith was shaking after he had put the accusations to her and that indicated to him that she was distressed. Mr Parsons remembered her walking away and described Mr Cox, who was standing next to him, as appearing ‘pretty normal’. Mr Parsons remembered Ms Goldsmith as different from the other women to whom Mr Cox had spoken in that she had spoken up and defended herself. She did not appear upset or shocked to him.

Ms Goldsmith said that she was assisted to the toilet by Ms Julie Giles who had asked her whether she was alright. She calmed down a little there. Ms Giles who gave evidence only recalled seeing her in the toilet where she appeared very upset and was crying.

After about ten minutes, Ms Goldsmith went to the first aid centre where the attendant’s notes record her as ‘upset & emotional’ and indicate that she was to go home ‘as required’. She ‘clocked off’ and left. I note that I do not accept her evidence which was to the effect that she only did so because she was going to contest her dismissal, given that I do not accept that she thought she had been sacked.

Ms Goldsmith obtained the keys to her car from Mr Collyer who also worked at the cannery. She drove herself to Shepparton, leaving work at about two o’clock. She went to see her general practitioner, Dr Marion Lockhart.

Dr Lockhart recalled Ms Goldsmith as having been distraught, crying, upset, sweaty and shaking. She fitted her in for an extra consultation. She remembered her account of an incident at work in which the boss had threatened her in front of lots of people. Dr Lockhart reassured her that she was having a panic attack and listened to her account of events. Dr Lockhart’s clinical notes record the consultation as follows:

Thursday February 12 2004 – 15:34:22
Dr Marion Lockhart
History:
Upset over work – talked to people, accused of intimidation by bosses. Crying all the time, has been feeling depressed on and off.
3 close friends died in past month. Mother has clot in vein.
Feels like is being victimised …
Examination:
General
…
D/W re work situation etc – refer for counselling/grief counselling.

Under cross-examination Dr Lockhart expressed the opinion that Ms Goldsmith made the additional disclosures of recent stressors because of her upset state.

Dr Lockhart referred Ms Goldsmith for counselling to the Shepparton community health service and Mr John Merrigum, a psychiatric nurse, because she thought this option would be the quickest for her to access and the cheapest. At the time, Dr Lockhart felt she couldn’t talk to a psychiatrist and access to the psychiatric unit at the hospital was limited to critical cases and the cost of a psychologist was $180.00 for a session.

Ms Goldsmith attempted a return to work in the week following the incident. Dr Lockhart then gave her some weeks off work.

She saw Mr Merrigum on 17 February 2004 for one hour. He made the following entry in his notes:

17/2/04 – 1pm – 60 mins

Avalon described a feeling of things not being alright at work over the past few months & last Thursday after a dressing down by a boss she left work. Av described periods of teariness which she was attributing mostly to the fear of being accused of inappropriate actions at work. She admits to poor language at times but is not seeing others being spoken to for similar behaviour. Av feels she has coped with worse in the past but described her shoulders as not being as broad as they have been. She has also been to three funerals over the Christmas period all sudden and people under 35 yrs. A previous girlfriend of Dan’s died in a car accident prior to New Year (Chloe). A fellow workmate & friend of Dan’s also hung himself (Ben). Av’s friend Thea died in a car accident. I explained the potential for depression and we also went through a description of anxiety.

Plan : …3 minute breathing exercise & monitor alcohol & not let it creep up to much (normally a can at most) …

On 25 February 2004, Ms Goldsmith told Mr Merrigum that she had planned to return to work on Friday despite not feeling ‘on top of things’. She had, however, received a phone call from the Human Resources department at SPC and had been informed that she was under investigation. This had led to her mood plummeting. She spent half an hour describing possible informants to Mr Merrigum. She also described a two to three month deterioration in her mood and told Mr Merrigum that she had continued to drink two stubbies a night, but was aware that this needed to be watched, as it was not normal for her to be drinking each day.

Ms Goldsmith continued to attend Dr Lockhart every couple of weeks in March and April 2004. She complained of symptoms of shaking and irritability and difficulty in sleeping.

On 10 March 2004, Ms Goldsmith saw Mr Merrigum and told him that she felt better taking Zoloft. The thought of work gave rise to anxiety symptoms of sweating and the like. Ms Goldsmith reported having been informed by her union representative that she could return to work at any time and that there was no discussion of any investigation, contrary to the advice she had received.

Ms Goldsmith spoke about some events in her past at this 10 March 2004 session. She referred to the fact that she had not had a relationship with her father, a well known athlete from New Zealand who had died of AIDS. She thought her search for proof that he was her father had probably also caused her poor relationship with her step father who had not wanted her or her brother and had left. She also told Mr Merrigum that the incident and the reprimand in front of her co-workers had reminded her of her sensations of shame when, after being arrested for shop lifting at the age of 13 and having been twice hit with a telephone book by police, she had been taken to school in handcuffs. Dr Lockhart recalled being told of the incident.

Dr Lockhart saw Ms Goldsmith fortnightly in March 2004 and diagnosed her to be suffering from an acute anxiety disorder with panic attacks and depression. Her clinical notes record her coping better until she saw someone from work or talked about it. She felt unable to cope with work and the doctor provided WorkCover certificates.

On 23 March 2004, Ms Goldsmith returned to Mr Merrigum. He records her describing herself as ‘80% right’. He suggested a four hour shift to provide the option of leaving and not being overwhelmed.

Professor Mendelson’s 6 April 2004 report

On 6 April 2004, the psychiatrist, Professor George Mendelson, saw Ms Goldsmith at the request of the insurer. She was tense and tearful during the interview. She described her intimidation before 30 people in the incident. She told the professor that the boss had told her that she had threatened acts of violence against people and she claimed to have been subjected to ‘language, intimidation’. The boss had made her feel that, no matter what she said, her job would not be there. She described as horrible having a six foot six inch tall man pointing his finger at someone of her height. She reported her tears, shaking, palpitations, sweating and shortness of breath. About a week later, she said, she had been telephoned by a man saying that she could not return to work because she was under investigation. Ms Goldsmith said that she still did not know what she had done and had been ‘found guilty, tried and hung without being told what she was guilty of’.

Ms Goldsmith reported continuing panic attacks involving shaking and crying and said that, only recently, had she opened her home curtains. She tended to avoid going out, but sometimes walked around the block. Only recently, too, she had started going to the supermarket. She had difficulty sleeping and tended to sleep during the day. She reported occasional use of alcohol after mowing the lawn and said she did not usually drink because of her liver. 50 mg of Zoloft had helped diminish the intensity of her anxiety symptoms.

On 6 April 2004, Professor Mendelson diagnosed an adjustment disorder with anxiety. He concluded that Ms Goldsmith had developed anxiety symptoms as a result of the incident and also found her resentful, aggrieved and somewhat angry about it. She had expressed the desire to return to work, but reported not being permitted to do so by SPC. Professor Mendelson thought a work trial not inappropriate, initially part time, with gradually increasing hours.

On 7 April 2004, Ms Goldsmith told Mr Merrigum of a panic attack she had at the local football match whilst on ‘kiosk duty’. Two of her former co-workers were also serving and this brought on symptoms. She was obliged to return home for half an hour before returning to watch the game.

On 18 May 2004, Ms Goldsmith told Mr Merrigum she had been feeling ‘fairly ordinary’ since receiving what she described as work termination papers. She was still fighting WorkCover’s decision to deny her claim. She was also thinking of stopping Zoloft, largely because of the cost, but said that Mr Collyer intended to fill the prescription the following day, not wanting a return of her low mood.

Dr Lockhart’s 3 June 2004 report

On 3 June 2004, Dr Lockhart did not feel Ms Goldsmith was fit for work, given her continuing panic attacks and anxiety in a stressful situation. She reported that although there had been some progress, it was unlikely that Ms Goldsmith would be able to return to SPC and might need counselling for some time. She was able to go out but was still unable to face anyone from work comfortably or confidently.

On 9 June 2004, Ms Goldsmith reported feeling better to Mr Merrigum, although she had not gone back on to her medication on 19 May (after their 18 May discussion). She reported drinking more than usual twice in difficult situations. She had now resumed Zoloft and noted that people found her much more relaxed when taking it regularly. She was to attend court in relation to her treatment at work on 17 June 2004 and felt a great deal more accepting of the situation.

On 8 July 2004, Ms Goldsmith told Mr Merrigum of the successful outcome of the conciliation process and that she would be paid for the sick leave period. She reported on a fortnight’s visit to her mother in the Hunter Valley and the anxiety that made it difficult to go out. She had also drunk over a slab of beer whilst there. She talked about having alcohol at the football to calm her nerves. Mr Merrigum told her that alcohol would only worsen anxiety.

Professor Mendelson’s 3 August 2004 review

Professor Mendelson reviewed Ms Goldsmith on 3 August 2004. She reported experiencing ‘ups and downs’ since her earlier visit on 6 April 2004. She reported her Hunter Valley trip and two subsequent funerals where she had seen former co-workers and had had a good but sad day. She told Professor Mendelson that she still had not regained confidence and had been crying a bit recently and becoming very worried. She was going out more and her main daily activity was playing with her puppies. Ms Goldsmith expressed her wish to return to work, but was not confident enough to work many hours. She wanted to have a discussion with Mr Cox ‘before even going back for an hour’. She was taking 50 mg Zoloft daily.

Professor Mendelson stressed the importance of a mediation as soon as possible, to minimise the delay before her return to work. In his opinion, two recent bereavements had had no significant effect on her anxiety symptoms.

Return to work program August 2004

In August or September 2004, Ms Goldsmith commenced a return to work program for one hour a day, three days a week. She continued to feel intimated at work and to have panic attacks.

On 4 August 2004, she and Mr Merrigum discussed her improvement in relation to her attending football, shopping and socialising, as well as episodes of her breaking down in tears over issues that would previously not have troubled her. She was feeling concern about likely reactions to her statements. She experienced inner turmoil at the thought of having a panic attack or of others believing that she had one and it was the thought of another panic attack which troubled her most about returning to work.

On 25 August 2004, Mr Merrigum and Ms Goldsmith discussed an incident at a football match in which Mr Collyer had been assaulted and which she attributed to her desire to protect people. She was glad that she had not been drinking and they discussed the results of arguing with someone who had. Ms Goldsmith planned to not embroil herself in problems and to remove herself from such situations. She felt she could cope with a scheduled appointment at SPC accompanied by her shop steward.

September 2004 suicidal thoughts

On 22 September 2004, Mr Merrigum records Ms Goldsmith reporting driving fast and thinking of driving off the road, but being prevented from doing so by thoughts of her children. These thoughts had occurred in the context of her financial reserves having been used up, her being angry that her pay had not gone into her bank account and a comment from her son about there being no cheese in the house which had left her angry. She had experienced an overwhelming feeling of not wanting to face these difficulties but recognised this as an overreaction.

(I note that Ms Goldsmith made a number of references to suicidal thoughts and attempts. Just over a year later, in November 2006, Ms Goldsmith was sent to the psychiatrist, Dr Michael Epstein, by her solicitors. She told him, apparently inconsistently, that she had actually made two suicide attempts in September 2004 each time ‘by driving her car into a tree, but avoided the collision at the last moment’. The following month, on 12 December 2006, she told Dr Nigel Strauss, a psychiatrist she saw at the request of SPC, (apparently in relation to the preceding couple of years) that she had had suicidal thoughts, but had made no attempts. I accept that she had the thoughts Mr Merrigum recorded at the time, given that she was seeing him regularly at the time.)

On 22 September 2004, Ms Goldsmith also told Mr Merrigum of a meeting at which she been told that four people at the cannery had claimed that they and their children had been threatened, but they had not wished to put the allegations in writing for fear of retribution from the Outlaws motorcycle club of which Mr Collyer was a member. Ms Goldsmith told Mr Merrigum that she and Mr Collyer refuted the claim and Mr Merrigum noted that, ‘Av went so far as to say that any issue she had would be directly with an individual and never their children.’ Ms Goldsmith told Mr Merrigum that she was angry at being considered guilty by management and that she found it hard that people think she might have done or said those things.

On 6 October 2004, Ms Goldsmith told Mr Merrigum of experiencing anxiety symptoms upon seeing Mr Cox at work and of entering the workplace crying.

In October and November 2004, Ms Goldsmith told Dr Lockhart that she felt that she was being ignored by Mr Cox and ‘the bosses’ and supervisors and was not getting the support she needed on her return to work. On 14 October 2004, Dr Lockhart noted that Ms Goldsmith had thought about suicide, had gone in a car and thought about a tree to run into, but had changed her mind. (I take this to be a reference to her thoughts in September after her last visit to the doctor early that month.)

On 20 October 2004, Ms Goldsmith complained to Mr Merrigum of people avoiding eye contact with her at work and her increased anxiety symptoms when Mr Cox and Mr Parsons were in her work area. She said that she was isolating herself from normal social outlets and shopping. On 3 November 2004, she reported feeling nauseous after returning home from work and feeling depressed. She reported that she was being supported by the union solicitor in relation to her treatment and about Mr Collyer not being put back on for work as normal.

On 17 November 2004, Ms Goldsmith reported to Mr Merrigum ongoing stress about her inability to work and any thought of needing to attend caused physical symptoms such as a raised heart rate and nausea. A couple of drinks alleviated the stress, but made her feel bad because she knew of their harmful effect on her liver. She told Mr Merrigum that she had been smoking marijuana for its relaxing properties and because it was supposed to be better for the liver. Mr Merrigum explained that marijuana worsened anxiety when its influence was not being felt.

Eventually, Ms Goldsmith stopped work in November 2004.

Professor Mendelson’s 23 November 2004 review

She saw Professor Mendelson on review on 23 November 2004 and told him about the early discontinuance of her work trial. He reported his impression that her negative attitude towards management was maintaining her anxiousness symptoms and suggested that a mediation be facilitated by a vocational rehabilitation consultant. In his opinion, her negative attitude was reinforcing her continuing anxiousness symptoms.

Dr Lockhart’s 25 November 2004 report

On 25 November 2004, Dr Lockhart again reported to the insurer. She noted no record of Ms Goldsmith having experienced anxiety or depression before February 2004. (Under cross-examination, the doctor distinguished between depression caused by events such as those in 2002 and clinical depression.) The doctor thought it was not possible for Ms Goldsmith to return to work at SPC. She went on to deal with her prospects of work elsewhere as follows:

8.The barriers to achieving a return to work at SPC/ Ardmona are the condition itself, but more importantly the ongoing stress and pressure at work. Alternative employment will only be possible if the ongoing anxiety and panic symptoms can be controlled. With time, her symptoms have spread to situations outside the workplace. This is very common with panic disorder. It is impossible to predict how long it would take for Avalon to reach this level.

On 23 December 2004, Dr Lockhart referred Ms Goldsmith to the psychologist, Ms Heather Wright, for assessment and any necessary further management.

Professor Mendelson’s 7 February 2005 report

Two months later, on 7 February 2005, Professor Mendelson expanded on his 23 November 2004 report in response to questions from the insurer. He did not consider that Ms Goldsmith was suffering from any clinically significant depressive disorder. Further, although she continued to describe symptoms of anxiousness, he thought her negative attitude, anger and resentment was preventing her successful return to work. Should workplace mediation be unsuccessful, it would be appropriate for her to seek employment elsewhere.

On 15 May 2005, Ms Goldsmith’s employment was terminated.

Ms Wright’s 22 July 2005 report

On 22 July 2005, Ms Wright reported to the insurer that Ms Goldsmith’s anxiety and depression symptoms had led to her withdrawal from most social contact and day-to-day activity, although the psychologist found her highly motivated towards recovery. She concluded:

In my professional opinion Avalon has many abilities that would indicate that she has the capacity to undertake suitable duties with a new employer in the future or undertake further training for employment. However, Avalon’s psychological condition has resulted in a severe level of impairment in most areas of functioning. The level of impairment would most likely render her ineffective in both workplace and academic functioning at this time.
It is expected that with regular psychotherapy, within 4-6 months Avalon’s level of functioning would have improved to a level that would enable her to undertake a job-seeking program, or undertake retraining. I could not recommend that she undertake these activities at the current time.

Ms Wright diagnosed Ms Goldsmith as meeting criteria for ‘Adjustment Disorder with Anxiety Chronic, Situationally Bound Panic Attacks (symbolic or Actual SPC Ardmona triggers) Moderate Major Depressive Disorder’. She recommended cognitive-behavioural therapy, psychotrauma education and counselling, as well as stress management, inoculation and desensitisation therapy.

Dr Walton’s 29 August 2005 report

On 29 August 2005, the psychiatrist, Dr Lester Walton, saw Ms Goldsmith at the insurer’s request. She gave him a history of the incident in which she referred to the production manager’s report of five complaints from co-workers and her finding it intimidating that he stabbed his finger in her direction. She reported accusations of her threatening violence against workers’ families, generally intimidating workers and using foul language. She said that she had been told that she was under investigation and had been threatened with retrenchment if the allegations were substantiated. Ms Goldsmith protested her innocence to Dr Walton describing the allegations as ‘bullshit’ and saying that her feeling at the time had been, ‘get out of my space’. She told Dr Walton that, after walking away from the confrontation, it had ‘hit’ her and she had felt short of breath, as though she was having a stroke, a heart attack or dying. She described being unable to move, shaking and sweating excessively and said that everyone was looking at her.

Ms Goldsmith also told Dr Walton that the allegations against her had been withdrawn. The complainants had not been identified and that she was always on edge about the possibility of meeting them in the community. She reported that she found Zoloft and Ms Wright’s treatment helpful but she also had three or four drinks a day and considered herself an alcoholic. Her psychological symptoms had improved and had stabilised. She reported considering driving her car into a tree on three occasions, thinking she had ruined so many lives, but thoughts of her children had stopped her.

Dr Walton also diagnosed an adjustment disorder with anxiety and depressed mood. The incident was the stressor, immediately followed by the onset of symptoms. Dr Walton nevertheless considered it an open question as to whether Ms Goldsmith’s stress-related disturbance did not meet the criteria for another primary psychiatric diagnosis and was not merely the exacerbation of a pre-existing diagnosis. He noted in this regard that, whilst Ms Goldsmith denied any past psychiatric history, Dr Lockhart had documented the history of depression in 2002 and Ms Goldsmith had acknowledged at least her past history of heroin abuse. He thought at least three months of treatment was appropriate. (There is no further report from Dr Walton.)

Dr Serry’s 22 September 2005 report

On 22 September 2005, another psychiatrist, Dr Nathan Serry, saw Ms Goldsmith at the insurer’s request. The history of the incident Dr Serry recorded was of Mr Cox informing Ms Goldsmith in an accusing fashion that people had been complaining about her and that she was under investigation. She reported Mr Cox asking if she had threatened anyone with violence and her denial. She reported Mr Cox pointing his finger at her and her beginning to sweat, being short of breath and having palpitations. She told Dr Serry that she felt panicky on returning to work when she saw the bosses. She felt anxious much of the time and less able to tolerate stress or pressure. She had ongoing panic attacks, but benefited from learnt breathing techniques and Zoloft. She had come close to attempting suicide on a number of occasions.

Dr Serry diagnosed a panic disorder with agoraphobic features and secondary depression, noting that Ms Goldsmith self-medicated to a degree with alcohol. He concluded that, if her account of the interaction with Mr Cox were accepted, it could be a significant contributing factor to her condition. On the basis of her then current level of anxiety with agoraphobic features, Dr Serry considered her not yet fit for suitable employment, but as having a capacity to participate in a rehabilitation program and short term study. He thought that it might be six months before Ms Goldsmith would be fit, noting that Ms Wright had given a four to five month time frame for improvement to enable her to seek a job or retrain. Dr Serry commented that Ms Goldsmith appeared quite hostile towards ‘the individual in question’ and had become somewhat cynical about the process. (There is no further report from Dr Serry after 22 September 2005.)

Medical Panel assessment 4 December 2005

On 4 December 2005, a Medical Panel assessed Ms Goldsmith’s degree of permanent impairment from an accepted psychiatric condition at 25% under s 91(2) of the Accident Compensation Act 1985.

On 8 December 2005, Ms Goldsmith told Dr Lockhart that in Melbourne she had shaken and was forced to leave the place she was in when she thought she saw someone looking like Mr Cox.

Ms Goldsmith continued to see Dr Lockhart in 2006. In January she mentioned her being teary talking about Mr Cox, having suicidal thoughts (without planning) and nervousness when shopping with her daughter, but coping. Early in February, she reported that she had ‘fallen in a heap’ and was feeling a failure again and, later on, being stuck with guilt feelings and that only her family stopped suicide. In April, she had problems attending a computer course and drinking sometimes five or six cans of alcohol at the football and four every day. Still Mr Cox’s name made her feel like crying. In May, she went to the cannery and was upset but also happy. Throughout, Dr Lockhart prescribed 200 mg Zoloft a day.

Dr Shan’s 26 May 2006 report

On 26 May 2006, Ms Goldsmith was examined by Dr Dush Shan, another psychiatrist, for SPC’s solicitors. She told him that she got tearful easily and was irritable and hypersensitive, she regularly suffered panic attacks and avoided mostly public places, unless she felt safe or was accompanied. She was capable of household chores and going to the post office to pay bills and the like. She drank between two and six cans a day of alcohol to contain her anxiety.

Dr Shan found Ms Goldsmith tense and angrily tearful when he suggested she shorten her answers. He thought her clearly very disgruntled with her employer and one particular person at SPC. As it seemed likely that she would become very agitated if asked to describe the precipitating circumstances, they were not discussed. She reported social withdrawal and ongoing depressed mood. She described nightmares and appeared consistent and not contrived.

Dr Shan also diagnosed adjustment disorder with mixed anxiety and depressed mood. He thought her condition ongoing and stabilised and her employment a significant or material factor to her incapacity. Dr Shan thought it was likely that her alcohol consumption was perpetuating her condition. He doubted that she would experience any degree of resolution whilst still in the WorkCover system because stress conditions arising within it tended to become chronic once accepted. Dr Shan thought it possible that her condition would ease the longer she was out of the workplace and if she moved from Mooroopna there could be a substantial improvement because some of her avoidance behaviour appeared to be directed at former colleagues. (There is no further report from Dr Shan after 26 May 2006.)

Ms Goldsmith saw Dr Lockhart again on 18 May 2006 and reported family conflict and her daughter’s worries about her harming herself. Dr Lockhart’s clinical notes for June July and August record Mr Collyer not working and the family conflicts and stress resulting from financial strain. In July, she was drinking and not coping as well as she had been and was worse off without medication. In August, she had thoughts of running away and of suicide and had been trying to cut down her alcohol consumption.

Dr Epstein’s 6 December 2006 report

On 29 November 2006, Ms Goldsmith saw Dr Michael Epstein at her solicitors’ request. On 6 December 2006, he reported her history of her supervisor aggressively accusing her, in front of 30 workers, of threatening and intimidating her co-workers and their families. He had pointed his finger right into her face and had told her that she was under investigation and would be retrenched if the allegations were substantiated. Ms Goldsmith told Dr Epstein that she had walked away, feeling intimidated and shocked as the allegations were untrue and she felt that she had never done anything wrong. She had become shaky and sweaty and had had palpitations and been short of breath.

Ms Goldsmith had told Dr Epstein that she had attempted suicide during the following month. (I note that this alleged attempt is not referred to in Dr Lockhart’s clinical notes or the comprehensive accounts of discussions in those made by Mr Merrigum, although Ms Goldsmith went even further in her evidence, asserting (apparently in relation to the period of several months after the February 2004 incident) that she had entertained suicidal thoughts on at least half a dozen times and that she had made two attempts, involving her driving towards a tree and at the last moment thinking, ‘he can't - Mr Cox can't do this to me, he has taken away everything and he is not going to take my life away from my family.’ I did not find her evidence as to her suicide attempts convincing in light of the contents of the contemporaneous clinical notes.)

Like Dr Serry, Dr Epstein diagnosed a panic disorder with agoraphobia with depressed mood and anxiety which he ascribed to a public accusation she had found impossible to refute. He thought her unfit for her previous employment or any work in any capacity and that her condition was unlikely to improve in the foreseeable future.

On 30 November 2006, Ms Goldsmith described her very negative thoughts to Dr Lockhart.

Dr Strauss’s 12 December 2006 report

It was on 12 December 2006 that Ms Goldsmith was examined Dr Nigel Strauss at the request of SPC’s solicitors. She told him that Mr Cox had informed her of reports from five people that she was threatening them and their children with violence if they did not strike. She said to Dr Strauss that Mr Cox’s ‘offsider’ had told him to ‘back off’. She reported her upset and vehement denials and Mr Cox telling her of her immediate suspension. She also said that she lost her job a month after the incident. She said that she was having suicidal thoughts but had made no attempts (apparently referring to the previous few years.) She rarely went out, for fear of running into people from work. She could go to the supermarket by herself, but was tense and usually shopped with her daughter. She was drinking and smoking more and had gained weight. She denied any past psychiatric history and use of illicit substances.

Like Dr Walton and Dr Shan, Dr Strauss diagnosed an adjustment disorder with depressed mood and anxiety resulting from the incident as the stressor. Dr Strauss did not think Ms Goldsmith simply had normal feelings of anger, upset and dissatisfaction. He thought her psychiatric condition mild and accepted that some apology from SPC may have helped resolve the conflict and may have alleviated her condition. Dr Strauss based his conclusion on Ms Goldsmith’s perception of events and expressed his preparedness to change his opinion if she was not harassed or bullied in the workplace. Ms Goldsmith, however, struck him as genuine and, significantly, Mr Cox’s account of events in an affidavit supplied did not alter the doctor’s view.

On 19 December 2006, Dr Strauss elaborated on his opinion, expressing the view that after closure of her case Ms Goldsmith would be able to work for another employer.

Dr Lockhart’s 19 April 2007 report

Dr Lockhart told Ms Goldsmith’s solicitors on 19 April 2007 that her initial diagnosis had altered only to the extent that Ms Goldsmith’s depression had become chronic. Dr Lockhart thought Ms Goldsmith was suffering from acute anxiety/panic disorder and chronic depression resulting from being chastised at work in front of her peers and intimidated by her employer. Her condition had settled but not stabilised and was related to her employment. She was still withdrawn socially and felt she had failed herself and her family. She was able to go out shopping a bit and attended her son’s football matches, although she often had to stay in the car because of her anxiety. It was impossible to say how long her incapacity for work would last, but she would not be able to return to work at her previous place of employment. Her response to treatment had been ‘nowhere near complete’, making it less likely that there would be a complete resolution of her symptoms. Her return to employment would have to be on apart time basis and it was not possible to predict when or if she would return to work.

Dr Strauss’s 19 April 2007 report

On 19 April 2007, Dr Strauss wrote to SPC’s solicitors after being provided with copies of Dr Lockhart’s clinical notes which included a reference to Ms Goldsmith’s depression in 2002 and possible substance abuse before her 2004 work problems. He expressed the belief that it was still quite possible that, as a result of her difficulties at work, she did develop a psychiatric reaction although her past history of depression might have predisposed her to psychiatric problems.

On 12 May 2007, Ms Goldsmith was filmed over about a four hour period at what she thought was the Rochester football ground where her son was playing. She is shown sitting with a group of spectators apparently joining in conversation, walking around and going to and from her car. She was unable to remember whether she had been to the club rooms for a period of time after the match finished and said that she usually didn’t when the match was away from home. (When Dr Lockhart was cross-examined about the surveillance material, she expressed the opinion that Ms Goldsmith’s symptoms varied and said that she was comfortable mixing with family and friends and sometimes did stay in the car at matches.)

On 5 June 2007, in response to an enquiry, Dr Strauss commented that a diagnosis of panic disorder and or agoraphobia might be made on the basis that Ms Goldsmith spent a good deal of time at home and feared going out and had panic attacks when she did. He nevertheless believed that a diagnosis of adjustment disorder was the most appropriate.

Dr Lockhart’s 14 June 2007 report

On 14 June 2007, Dr Lockhart reported her opinion to the insurer that Ms Goldsmith’s then current depression/panic disorder had no connection with her past drug or alcohol abuse and minor episode of depression, noting the absence of any recorded symptoms of panic and apparent ability to cope well with stress, demonstrated by stopping drug use.

On 16 June 2007, Ms Goldsmith was filmed watching her son play football in the company of a number of other people, talking and apparently quite at ease out of her car mingling with the other spectators standing near parked cars. She appears to be drinking from a can from time to time.

Ms Wright’s 22 June 2007 report

In a 22 June 2007 report to Ms Goldsmith’s solicitors, Ms Wright stated that Ms Goldsmith’s depressive symptoms resulting from the incident as the original stressor had been compounded by consequential negative changes in her life. Her anxiety and depression symptoms prevented her effective functioning socially, with the result that she had withdrawn from most social contact and day-to-day activity outside the house. Her symptoms had also prevented her from returning to pre-injury work and she was not then currently fit for any employment. Ms Wright’s testing indicated that Ms Goldsmith had been severely traumatised by the incident. She considered that Ms Goldsmith’s experience of psychological disorder symptoms was genuine and the severity of her suicidal thoughts remained high. She concluded:

In my professional opinion, the experience and consequences of the verbal incident with Glen Cox have brought severe changes to Avalon’s psychological condition, which I suspect will leave life-long psychological damage.
She is currently high risk suicidality.

On 7 July 2007, Ms Goldsmith was filmed during an afternoon of some four hours of watching the football at the Kyabram Football club. She is shown with her husband and a friend and appears relaxed and happy. She is drinking and smoking and coming and going from her car.

Dr Strauss’s 19 July 2007 report

On 19 July 2007, again responding to questioning, Dr Strauss commented that he was not convinced that Ms Goldsmith had a major depressive disorder as well as an adjustment disorder. He thought that the adjustment disorder diagnosis was adequate and said that it was highly unusual to diagnose an adjustment disorder at the same time as a major depressive disorder. Nor did he agree with Ms Wright’s opinion that Ms Goldsmith had lifelong psychological damage. He repeated his view that there would be significant improvement in her condition once the case had been finally resolved. He repeated it again on the following day, 20 July 2007, after being informed that Ms Goldsmith had had a panic attack whilst giving evidence in court, noting the stressfulness of such an experience.

Dr Chakrabarti’s 22 August 2007 report

On 22 August 2007, Ms Goldsmith was referred to the psychiatrist, Dr Indranil Chakrabarti, by Dr Lockhart. Dr Chakrabarti concluded that she was suffering from depressive symptoms, but more intense anxiety; she had mild generalised anxiety, situational anxiety and occasional panic symptoms. Dr Chakrabarti suggested a drug change to Paroxetine with Propanolol before anxiety provoking situations and thought it very important that Ms Wright’s cognitive behavioural therapy treatment should continue.

On 26 April 2008, Ms Goldsmith was filmed at the football in the company of a friend seated in the grandstand, smiling and talking to her companion and fondly greeting another who joins them. She left her seat and stood in the relatively crowded area. She talked to a man and stood near others.

On 5 May 2008, Ms Goldsmith was filmed driving alone and parking near what appears to be a shopping area at just after 3 pm. She appears in the film to be talking to someone else as she got back into the car.

Videotaped surveillance film taken on 31 May and 2 June 2008 shows Ms Goldsmith shopping on her own at two different supermarkets. Each time, she purchases a large number of items. On 31 May, from just before 1.00pm, she is filmed having a lengthy animated conversation with a person she identified as a former SPC co-worker standing beside her car in an open air car park. She also engaged in another short animated conversation with someone else in another car. She is shown conversing with another woman beside their shopping trolleys in a supermarket aisle. On 2 June 2008 at 3.39pm, she was filmed again, handling a large amount of shopping and proceeding to a drive-in bottle shop.

Dr Strauss’s 12 August 2008 review

On 12 August 2008, Dr Strauss reviewed Ms Goldsmith. She told him that she had not improved since her last visit on 12 December 2006. She referred to continuing suicidal thoughts and the absence of recent attempts. She reported depression and tearfulness and nervousness on her return to work for a few months. She told Dr Strauss that she had heard upsetting rumours about herself; she had only worked part time and had been isolated as no-one had communicated with her. She had not been able to cope and had left.

Ms Goldsmith described herself to Dr Strauss as sitting at home and driving to the lake to read. She reported supermarket shopping but not liking to go to new shops or spending any excess time at the shopping centre. She saw few friends and was fearful of running into people from work. She watched her son playing football but did no gardening and played no sport. Ms Goldsmith said that she drank three to four cans of Vodka a day, but used no illicit substances. Her alcohol usage had only been excessive in the then recent past. She often felt panicky and had panic attacks.

In a 12 August 2008 report, Dr Strauss expressed the opinion that Ms Goldsmith was a vulnerable person when her 2004 problems occurred. She had a past history of drug and alcohol abuse and she may have had past episodes of depression. He thought she had reacted quite significantly to a ‘relatively minor incident in the workplace.’ There would be no improvement until her claim was settled, after which he could see her working elsewhere in a safe and supportive environment. She would never be able to return to her former employment because of the incident.

Dr Epstein’s 10 September 2008 review

Dr Epstein reviewed Ms Goldsmith for her solicitors on 10 September 2008. In a 15 September 2008 report, he confirmed his initial diagnosis of Panic Disorder with Agoraphobia and the development of chronic Adjustment Disorder with depressed mood and anxiety. In the latter diagnosis, he agreed with Drs Walton, Shan and Strauss. Dr Epstein recorded Ms Goldsmith telling him of continuing depression, anxiety and panic attacks several times each week. She explained her attendance at her son’s football matches in 2008 on the basis of his worries that she might harm herself if left at home. She said that she found the matches very unpleasant because she felt vulnerable and fearful away from home. She also avoided shopping centres and crowds and went to the local supermarket with her daughter and often alone when it was not crowded.

Dr Epstein found that she continued on psychological and anti-depressant medication ‘with no evidence of any significant improvement and possibly even some deterioration’. He thought her psychological state prevented her return to work in the foreseeable future and that her prognosis for improvement was poor.

Ms Wright’s 19 October 2008 report

On 19 October 2008, Ms Wright provided another report to Ms Goldsmith’s solicitors, recording assessment indicating that her psychological condition had stabilised at a dysfunctional level. Ms Goldsmith was experiencing panic attacks in unfamiliar situations and lower level anxiety symptoms in familiar situations. A May 2008 assessment had indicated a lower level of self medication with alcohol, but that her alcohol use constituted severe substance abuse.

Ms Wright still considered Ms Goldsmith unfit for employment due to her impaired functioning on 19 October 2008 and thought her prognosis remained as it had been in June 2007, but with increased risk of suicidal action. Ms Wright thought that the legal process was reactivating Ms Goldsmith’s trauma and remained of the view that lifelong psychological change would be the effect of the trauma.

Video-taped surveillance footage shows Ms Goldsmith on an outing around midday on 24 October 2008 at about 9.30 am. She is seen using handibank and service station facilities, IGA supermarket shopping for a large number of items and buying a can of vodka inside a bottle shop behind the supermarket.

On 15 January 2009, Dr Lockhart’s clinical notes record Ms Goldsmith feeling a bit depressed because of family problems. They refer, with reference to Mr Collyer, to Ms Goldsmith feeling like crying, having been hurt before and being worried about being hurt again. She was also having suicidal thoughts.

On 31 January 2009, Ms Goldsmith was filmed shopping alone at the Coles supermarket in Mooroopna and again buying a can at the IGA bottle shop just after 10.00am.

Dr Epstein’s 2 February 2009 report

On 2 February 2009, Dr Epstein reported his opinion to Ms Goldsmith’s solicitors that Ms Goldsmith’s description of humiliation and threats administered in front of 30 workers presented a situation which would be distressing to most people and would have the potential to lead to psychiatric injury.

The Alfred 12 February 2009 report

On 12 February 2009, The Alfred gastroenterologist reported to Dr Lockhart the Ms Goldsmith had managed to reduce her alcohol intake and had been having two standard drinks approximately on her three drinking days a week.

Ms Wright’s 15 March 2009 report

On 15 March 2009, Ms Wright provided an update on Ms Goldsmith’s condition. She considered that its continuing source was the incident, compounded by the ongoing consequences of the resulting injury and suspected that Ms Goldsmith would have lifelong psychological damage. She had achieved a low level of recovery and her psychological condition had stabilised at a dysfunctional level; she was impaired by the severe level of the continuing impact of her experience, suggesting that, even after a full recovery, she would remain at high risk of further persistent episodes. Ms Wright considered Ms Goldsmith currently unfit for employment and thought it difficult to predict her future work capacity, given the resilience of her condition. She thought her at continuing high risk of suicide.

Ms Wright thought Ms Goldsmith was genuine in relation to her symptom reports and that she would need ongoing psychotherapy treatment for many years ‘to facilitate remission from reactivated acute trauma responses and depressive episodes’.

Dr Lockhart’s 19 March 2009 report

On 19 March 2009, Dr Lockhart reported that she did contemplate the possibility of Ms Goldsmith improving sufficiently to be able to return to work, although she considered her incapacitated for work at that time. She found it impossible to give an estimate of the time frame for any return to work. She thought her problem chronic, given its duration to date, and her consistent experience of symptoms of anxiety and depression varying according to the stresses she experienced.

Dr Lockhart’s evidence

Dr Lockhart gave evidence. I accept her evidence generally as to Ms Goldsmith’s condition from time to time and as at the trial date. As the treating general practitioner she has had continuing regular contact with Ms Goldsmith and has been in a very good position to determine the accuracy of her accounts of events and her condition from time to time. She is an experienced general practitioner and she too has considered Ms Goldsmith to be genuine.

Conclusion as to Ms Goldsmith’s condition

Without the benefit of hearing the expert medical evidence tested and the differences between the respective diagnoses explored, I am unable to be satisfied as to the proper characterisation of her psychiatric condition, save to say that there is a good deal of consensus that she suffers from an adjustment disorder with anxiety and depressed mood. Whilst bearing in mind their relative specialities and expertise, I take particular notice of the opinions of Ms Goldsmith’s treating practitioners, Dr Lockhart and Ms Wright, given their contact with her over many years. I am satisfied that Ms Goldsmith does suffer from a recognisable psychiatric illness and experiences symptoms of anxiety and depression as well as panic attacks on occasion. The incident was in my view a cause of her psychiatric condition.

Although Ms Goldsmith did not impress me as a very reliable witness and I consider that she tended to exaggerate the adverse impact of her condition and symptoms, I am satisfied that her anxiety and experience of depressive symptoms have been a cause of her limiting her social activities to familiar situations and have affected her in other ways. She has put on weight. She experiences symptoms of anxiety and panic at times when out in public, fearing contact with anyone associated with SPC. She limits her shopping excursions to some degree, in order to avoid contact with former colleagues. She drinks alcohol to give herself courage to attend her son’s football matches and to watch her daughter play netball and generally to bolster her confidence. She also on occasion feels useless and hopeless and the cause of pain and suffering to others. I note that it is unclear from the evidence the extent to which marijuana use may have contributed to her condition, but the evidence about her drug use does not dissuade me from my conclusion that the requisite causal nexus is established between her condition and the incident.

In assessing Ms Goldsmith’s own evidence as to her past and current condition and ability to function domestically and socially, I have taken into account her unexplained failure to call evidence as to her historical or current condition or behaviour from friends or, more significantly, from any member of her family. Mr Collyer, Ms Goldsmith’s husband, was present in the Court for some of the time during the trial. I have assumed that this evidence would not have assisted her case.[2]
[2]See O’Donnell v Reichard (1975) VR 416.

I am satisfied that as a result of her psychiatric condition, she is and will remain unable to return to work at SPC, but am not persuaded that she will be unable to work again elsewhere. I take it into account that she has not tried any other form of work or sought a job but I bear in mind her reported difficulties in coping with a computer course, her age and her limited education. She has expressed the hope that she will be able to get a job and she has experienced financial stress from time to time which might be alleviated if she were in receipt of a salary. I am persuaded at least that the finalisation of this proceeding will remove a significant stressor from her life. She should then improve on all fronts to some extent.

Applicable Legal Principles:

Duty of Care:

An employer has a duty to take reasonable care to avoid reasonably foreseeable psychiatric injury in the form of a recognisable psychiatric illness to a particular employee. The authorities establish that:

· the question as to whether psychiatric injury to a person of ‘normal fortitude’ was reasonably foreseeable is not the decisive issue;[3]

[3]Tame v New South Wales (2002) 211 CLR 317, 333 [16] (Gleeson CJ).

· the ‘central inquiry’ is as to whether the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable ‘in the sense that the risk was not far fetched or fanciful’;[4]
[4]Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 27 [33] (McHugh, Gummow, Hayne and Heydon JJ ).

· it is necessary to prove that the particular kind of psychiatric injury suffered is foreseeable;[5]

· foreseeability is assessed with reference to ‘the impression created by, and the other overt or foreseeable sensitivities of the actual person affected’;[6]

· the fact that a psychiatrist in the employer’s position might have foreseen a risk of psychiatric injury, does not mean that a reasonable employer should be regarded as likely to form the same view. [7]

[5]Ibid.

[6]Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 65 [55] (Callinan J).

[7]Ibid.

Ms Goldsmith argues that a duty of care arose in the circumstances of the obligations between the parties under their contract of employment and, in particular, the description of the purpose of the disciplinary policy engaged being ‘to ensure equity and fairness’. She contends that the risk of psychiatric injury in the circumstances of this case could not be reasonably described as far fetched or fanciful. She submits that such a risk was probably and almost certainly foreseeable, given the manner in which the events occurred and the conduct of Mr Cox in his dealings with each of the women concerned.

Counsel urge the Court to consider Ms Goldsmith’s friendships amongst her workmates, her lengthy work history and assumption of responsibility, her achievement in operating the new one kilo line and her subjection to accusations of serious misbehaviour and misconduct, without warning, in the presence of her workmates. The background to her response was Ms Leahy’s shocked reaction and subsequent tearfulness, Ms Kerr’s uncontrollable tears and Ms Frankowicz’s tears upon her return to her work station. Counsel acknowledge that it was not put that Mr Cox knew of these reactions, but submitted that Ms Frankowicz’s leading hand, a company officer knew of the impact upon her.

Counsel for SPC concede that it owed Ms Goldsmith a duty of care to protect her from foreseeable risk of psychiatric injury. They nevertheless contend that it would not have been reasonably foreseeable to SPC that Ms Goldsmith would suffer psychiatric illness in all the circumstances because her particular vulnerability was not known to it.

Duty of care - conclusion

I am satisfied that SPC did owe Ms Goldsmith a duty to take reasonable care to avoid the risk of the kind of psychiatric injury she suffered. I am persuaded that the risk of her sustaining such a recognisable psychiatric illness, if SPC’s actions amounted to a failure to take reasonable care in dealing with the reports of threats and intimidation in the circumstances, was not far fetched or fanciful and so was reasonably foreseeable to a reasonable employer in its position. I note that I take into account, in particular, the relatively powerful positions of Mr Cox and Mr Parsons and Ms Goldsmith’s comparative vulnerability as a process worker in the cannery, as well as the circumstances in which the matter had to be dealt with.

I have also had regard to all matters addressed by counsel in this regard including, as to the content of the duty of care, the recognition in the award that the effectiveness of disciplinary processes depended upon ensuring ‘equity and fairness’ in the applicable context ‘where the conduct or performance of an employee gives rise to complaint or concern’.[8]
[8] See: Koehler v Cerebos (Aust ) Ltd (2005) 222 CLR 44, 53 [21] (McHugh, Gummow, Hayne and Heydon JJ).

Breach of duty

An employer will breach the duty not to cause reasonably foreseeable psychiatric injury to an employee by failing to take reasonable care to avoid that injury.

The inquiry is prospective[9] and the Court should balance the magnitude of the risk and the probability of it occurring, as well as the cost, difficulty and inconvenience involved in taking measures to alleviate it and factors such as any conflicting responsibilities on the part of the party with the duty of care.[10] A plaintiff will not be precluded from recovering damages for a psychiatric injury caused by an incident because of her particular sensitivity arising from difficult past experiences.[11]
[9]RTA v Dederer (2007) 234 CLR 330, 353 [66] (Gummow J).
[10]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8 (Mason J).
[11]Bau v State of Victoria [2009] VSCA 107, [112] (Neave JA).

Ms Goldsmith argues that there was a high degree of risk of her sustaining psychiatric illness. Counsel for Ms Goldsmith submit that the Court should take into account that none of the doctors consulted expressed any doubt about the relationship between the incident and the psychiatric injury to Ms Goldsmith. They point out that Dr Lockhart had seen similar reactions on many occasions in similar circumstances.

Counsel Ms Goldsmith argue that she was a woman with no education being confronted by the factory manager at her work station in the presence of her workmates. There had been no warning or notice to her and the matter had not been handled through SPC’s human resources department or in accordance with the disciplinary processes set out in the Certified Agreement. She had been given no time to consider her position and to respond.

I am not persuaded that the risk of psychiatric injury to Ms Goldsmith was high, even though the medico-legal witnesses and Ms Goldsmith’s treating practitioners have accepted a causal nexus between the incident, as she described it, and her illness.

There was no evidence that Mr Cox or Mr Parsons knew of any particular vulnerability on the part of Ms Goldsmith. Although she had had only a limited education, she had been successful in life, as Dr Lockhart pointed out in evidence and counsel submit. She had a long term relationship with Mr Collyer who also worked at the cannery, their two children were doing well and the family was involved in the community. Mr Cox himself had come across her because of their daughters’ shared netball activities. Further, Ms Goldsmith had been employed by SPC for some 20 years and had worked almost constantly since leaving school. There is no indication that she demonstrated lack of self confidence at work. Indeed, by her own account, she had used poor language at work and was confident enough to joke aloud at a staff meeting in front of her assembled colleagues. She appears to have presented as a rather spirited individual, capable of speaking up to the extent of upsetting colleagues on occasion, according to Mr Parsons. Indeed, she described in evidence how she spoke back to Mr Cox during the incident, commenting on their respective financial positions, in the course of the incident.

Counsel for Ms Goldsmith rely upon the fact that Mr Cox had observed the reactions of the other women to whom he had spoken and they argue that knowledge of Ms Frankowicz’s reaction should be imputed to him because it was observed by her supervisor who failed to tell him about it. I am not persuaded that Mr Cox, as a reasonable man in the circumstances, should have contemplated from those reactions or his interaction with any of the other women that day that there was a risk of Ms Goldsmith becoming ill psychiatrically if he spoke to her in a similar fashion. There was no evidence of him being aware of any previous situation in which such an outcome had followed the adoption of a similar approach to dealing with workers. In this regard, I have already indicated that I do not accept Ms Goldsmith’s account of Mr Parsons telling Mr Cox to let her speak and I do not accept as accurate her report to Dr Strauss that Mr Parsons told Mr Cox to ‘back off’.

I consider that Mr Cox and SPC acted reasonably in the circumstances which confronted them. Tensions were high in the workplace. The time for agreement under the existing industrial arrangement was running out and there was an impending strike. Mr Cox had been informed of very serious allegations involving intimidation of other workers reported by staff from the human resources department and the first aid centre. He had also personally received disturbing reports of intimidation. He and other managers had determined that he needed to inform those potentially involved that such behaviour was not to be tolerated. Mr Cox considered he had a duty of care to the victims of the alleged intimidation. I agree. I take into account Mr Cox’s responsibilities in all the circumstances when determining the reasonableness of his actions with regard to Ms Goldsmith.

As far as Mr Cox’s behaviour is concerned, it is common ground that he was not shouting when he spoke to any one of the five women. He is a very tall man in comparison with each of the women he addressed and would be likely, of necessity, to have bent forwards to communicate with each of them in the noisy environment. The conversation with Ms Goldsmith took place, on her own account, some ten to twenty metres from where she had been working and I am not persuaded that any of her workmates could hear what was being said to her or were watching the exchange. I have taken into account Mr Cox’s general demeanour and the fact that he pointed his finger at Ms Goldsmith. The evidence, nevertheless, indicates that environment of the factory was a robust one and Mr Cox was accompanied not only by the production manager, Mr Parsons, but also by Mr Goonan, the union representative, each of whom was in a position to have intervened had they thought it necessary. I accept that Mr Goonan told Mr Cox that he considered his behaviour to be intimidating after he had spoken to women before Ms Goldsmith, but he did not intervene to stop Mr Cox whilst he was addressing Ms Goldsmith.

The disciplinary policy provisions in the Certified Agreement do set out a process for dealing with complaints or concerns in relation to the conduct of an employee, but do not, on their face, proscribe the transmission of a message of the type Mr Cox was seeking to deliver. They also provide for a verbal warning to be given for conduct ‘which emerges as a problem’. I have rejected Ms Goldsmith’s evidence that she was in effect summarily dismissed, so this is not a case in which the prescribed steps to dismissal in the award had been ignored.

Whether or not Mr Cox used the word ‘allegation’, he was informing each woman that allegations of intimidation had been made against her. He also indicated to each woman, in effect, that, if the allegations were to be substantiated, she would be dismissed. Mr Cox also informed each woman that if the allegations were not proven, she would have nothing to worry about. There was no dispute that Ms Goldsmith was aware that such alleged behaviour would warrant dismissal.

Ms Goldsmith, by her own account, responded confidently and displayed the presence of mind to reflect upon the comparison between her financial situation and that of Mr Cox. It was not suggested that this behaviour was out of character for her and I take it and the other evidence about her behaviour at work into account in determining her ‘overt sensitivities’[12] both in relation to the issue of the existence of a duty of care and its alleged breach. I have taken into account that Ms Goldsmith did walk away from the encounter and that by then Mr Cox had seen her shaking and realised that she was upset.
[12]See Koehler v Cerebos (2005) 222 CLR 44, 65 [55] (Callinan J).

In my view, it was reasonable for Mr Cox to have behaved the way he did in the circumstances and SPC did not breach its duty to take reasonable care to avoid reasonably foreseeable psychiatric injury to Ms Goldsmith.

It will be apparent from my findings of fact what my conclusions about causation loss and damage would have been, had I decided to the contrary on the issue of breach.

The claim should be dismissed.

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[2009] VSC 445

5 October 2009