Bailey v The Workers Compensation Nominal Insurer (previously sued as Hardy Bros Mining and Constructions Pty Ltd)

[2017] NSWDC 57

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bailey v The Workers Compensation Nominal Insurer (previously sued as Hardy Bros Mining & Constructions Pty Ltd) [2017] NSWDC 57
Hearing dates:	5, 6, 7 and 9 December 2016
Date of orders:	22 March 2017
Decision date:	22 March 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to s 151D Workers Compensation Act 1987 (NSW), extend time for the plaintiff to commence proceedings to 29 April 2016. (2) Judgment for the defendant. (3) Plaintiff pay defendant’s costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained until further order.
Catchwords:	TORT – personal injury - leave to commence proceedings more than three years after injury – adequacy of explanation for delay – extension of time granted – plaintiff claims psychiatric injury following confrontations with supervisor – credibility of plaintiff’s evidence – foreseeability and psychiatric injury in the workplace - challenge to plaintiff’s expert evidence on workplace bullying under s 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW) – causation and damages issues – judgment for defendant
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW), s 79(1) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6(4) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW), ss 65A, 151 and 151D(2) Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 313 and 318
Cases Cited:	Allianz Australia Ltd v Sim (2012) 10 DDCR 325 Australian Winch & Haulage Co Pty Ltd v Collins [2013] NSWCA 327 Czatyrko v Edith Cowan University (2009) 214 ALR 349 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Koehler v Cerebos (2005) 222 CLR 44 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McKay v Palmers Removalists & Storage Pty Ltd [2010] NSWCA 83 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Purkess v Crittenden (1965) 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 State Transit Authority of New South Wales v Chemler (2007) 5 DDCR 286 Strong v Woolworths Ltd (2012) 246 CLR 182 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Thornton v Telegraph Media Group Ltd [2011] EHWC 1884 (QB) Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117 Watts v Rake (1960) 108 CLR 158 Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 Woolage v NSW [2001] NSWCA 256 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Plaintiff: Andrew Bailey Defendant: The Workers Compensation Nominal Insurer (previously sued as Hardy Bros Mining & Constructions Pty Ltd)
Representation:	Counsel: Plaintiff: Mr C Hart Defendant: Mr P Stockley   Solicitors: Plaintiff: Michael Evers & Co Defendant: Lee Legal Group
File Number(s):	2016/157820
Publication restriction:	None

Judgment

The parties in these proceedings

1. The plaintiff, by statement of claim filed on 29 April 2016, commenced proceedings against his former employer, Hardy Bros Mining & Constructions Pty Ltd (“HBMC”), for injuries suffered on 7 October 2009 while in HBMC’s employ.

2. I briefly note that the identity of the defendant changed during the hearing, in the following circumstances. On 7 December 2016, the third day of the hearing, the parties informed the court that Hardy Bros Mining & Constructions Pty Ltd has gone into liquidation shortly before this litigation was commenced, and that the Workers Compensation Nominal Insurer needed to be substituted as the defendant in order for the litigation to continue. An order was accordingly made by consent on 9 December 2016 pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) for the Workers Compensation Nominal Insurer be substituted for the defendant Hardy Bros Mining & Constructions Pty Limited.

The pleadings

3. The plaintiff’s claim is for a psychiatric injury arising out of his treatment at the workplace by his immediate supervisor. As the defendant sought to hold the plaintiff’s conduct of the hearing to the parameters in which the case was pleaded (namely a frank injury on 7 October 2009), I start by setting out the relevant extracts from the pleadings.

4. The asserted duty of care (and its breach) and the resultant injury are pleaded in the statement of claim as follows:

“4. At all material times, the defendant, through its servants and/or agents, owed a duty to take reasonable care for the safety of the plaintiff, to provide a safe place and system of work and to otherwise take reasonable steps to ensure the plaintiff was not exposed to risks of injury of which the defendant knew or ought to have been aware, and/or take reasonable steps to comply with the provisions of the Occupational Health and Safety Act 2000 (“OHS”) and/or its regulations, in so far as they informed the duty and standard of care.

5. On 7 October 2009, the plaintiff had been injured as a result of a faulty seat in a truck in which he had been working in [sic] that day and was harassed, abused and victimised by his Systems Manager, Matthew Galvin, after he reported the incident of his injury, causing him to suffer severe injury, loss and damage.”

5. Mr Hart, counsel for the plaintiff, submits that this includes a duty to provide safe premises for use in the relevant construction project area, as this gave rise, in part, to the events on 7 October 2009. It is also submitted that “common sense” would dictate that the duty extends to the proactive obligation to supervise Mr Galvin (the plaintiff’s immediate supervisor and the designated person in charge of disciplinary issues at the workplace), in the implementation of all disciplinary procedures. Mr Hart also argues that occupation health and safety provisions are relevant when considering the nature and extent of the defendant’s obligations to its employees (written submissions, paragraph 1).

6. The plaintiff’s case is that certain events occurring on 7 October 2009 (and what Mr Hart referred to in his written submissions as “the days that followed”) established a breach by Mr Galvin of the duty to take reasonable care “as informed by the OHS provisions”, in that shouting at the plaintiff, threatening his employment and discrediting his honesty were not reasonable or in compliance with the duty of care imposed on his employer.

7. What precisely was the defendant’s duty? The obligation to define duty of care, and consequential breach of that duty, has been explained by the New South Wales Court of Appeal in Jackson v McDonald's Australia Ltd [2014] NSWCA 162. Noting that explanation, I accept Mr Hart’s submission that the duty is to take reasonable care in relation to the supervision of the workers’ relationships in the workplace and in particular to ensure any workplace directions and discipline is conducted in a fair and reasonable manner, and that the asserted breach of that duty consists of Mr Galvin’s conduct as pleaded and particularised.

8. This is confirmed by the particulars of breach of duty, which are pleaded as follows:

“(a) By its servants and/or agents, failing to take reasonable care to provide safe plant for use by the Plaintiff, the plant likely to lead to a risk of injury, as the seat on a dump truck was faulty, such plant likely to result in injury (“the physical injury”).

(b) By its servants and/or agents, failing to take reasonable care to provide a safe working environment, the environment likely to lead to a risk of injury as it resulted in the Plaintiff being exposed to abuse and harassment in the workplace when he reported the physical injury (“the risk”).

(c) By its servants and/or agents, failing to take reasonable care to provide appropriate policies, procedures and training on workplace harassment, such procedures are likely to have prevented the circumstances of the risk.

(d) By its servants and/or agents, breach of the provisions of the OHS and/or its regulations, insofar as the Defendant, as controller of the system and place of work, failed to take reasonable steps to identify, control and eliminate the risk of injury as described in paragraphs 7(a)-(c) above.

PARTICULARS

Regulations 34, 35, 37 and 39 of the OHSR

As a result of the negligence and/or breach of statutory duty aforesaid, the Plaintiff suffered severe injuries, loss and damage.”

9. The defendant has conducted this case on the basis that the plaintiff’s case is as particularised. I briefly summarise the issues raised with the particulars set out in paragraph 8 above:

1. As to particular (a) of the particulars of negligence, a work injury damages claim for a psychiatric injury is not available (s 65A Workers Compensation Act 1987 (NSW));

2. As to particulars (b) – (d), the only factual assertion in relation to the plaintiff’s psychiatric injury is the frank event of 7 October 2009, whereas these particulars relate to systems failures in preventing exposure to risk of injury by abuse and harassment;

3. There is no allegation that the defendant knew or ought to have known that the plaintiff was vulnerable or susceptible to psychological injury (Koehler v Cerebos (2005) 222 CLR 44 at [27] – [28]); and,

4. There is no allegation that the defendant is liable, vicariously or otherwise, for an intentional tort such as abuse or harassment, as opposed to a negligent act.

10. The defence filed on 2 June 2016 denies liability and causation. The defendant also raises a defence under s 151D(2) Workers Compensation Act 1987 (NSW) (“the Act”) by reason of these proceedings being commenced five and a half years out of time. This application was only faintly pursued at trial and, as is set out below, I have granted leave.

The plaintiff commences work with HBMC

11. The plaintiff’s evidence in chief was that he developed a good relationship with Mr Galvin and HBMC in his prior, happy, employment at Hagemeyer. He told the court he left Hagemeyer to work for HBMC, even though the pay in his new job was lower, for two reasons. The first was his good relationship with Mr Galvin, and was because of the promotion opportunities with HBMC:

“Q. The hourly rate that you got paid at Hardy Bros was lower than what you'd been paid at Hagemeyer, wasn't it?

A. Yes.

Q. You're prepared to take a lower salary to change jobs?

A. Yes.

Q. Why did you want to do that?

A. Because Hardy Bros had promised me a career advancement whereas Hagemeyer didn't have that opportunity and the job wasn't just about the money.

Q. What did the job at Hagemeyer require you to do?

A. I was a sales manager or an account manager, they called it, so I was representative and my job was to increase the industrial business in the Newcastle area.

Q. One of the customers of Hagemeyer was Hardy Bros, is that correct?

A. A customer that I recruited for the company, yes.

Q. But the job you had at Hagemeyer you found very stressful, didn't you?

A. I'll say no.

Q. I'm sorry.

A. No, I didn't.

Q. It wasn't. So it didn't cause you any particular psychological or emotional problems?

A. Not particularly, no.

Q. See on 20 April 2009, you consulted Dr Anderson and you told him on that occasion you were under a lot of stress and that you may change your job.

A. I don't recall that.

Q. If he has recorded that in your clinical notes, it suggests that you were experiencing stress and you were intending to change your job. You don’t agree with that proposition?

A. I don’t know.

Q. Or were you experiencing stress in April 2009 shortly before you worked for Hardy Bros for reasons other than the job at Hagemeyer?

A. Not that I know of.” (T 56)

12. It was common ground that, after the plaintiff commenced his new employment, he continued to get on well with Mr Galvin. The question was when this changed. The plaintiff referred to a dispute about where the truck was parked and an ongoing problem with the truck seat but touched on these only briefly. This painted a picture of the events of 7 October 2009 as either out of the blue or a sudden and unwelcome escalation of prior hostility about the truck.

13. In cross-examination, the plaintiff referred to other incidents when he had been unfairly treated, which are set out in more detail below. However, before considering that conduct (and noting the defendant’s objections to this evidence on the basis that this is a “frank injury” style claim), I set out the evidence of the events which took place on 7 October 2009.

The plaintiff’s meeting with Mr Galvin on 7 October 2009

14. The plaintiff’s evidence in chief was that the truck seat problem was one of some standing, and that Mr Galvin had done nothing about it in the past:

“Q. What was the problem?

A. The air conditioning system didn't work and the seat was faulty.

Q. In what way was the seat faulty?

A. It jarred continually. It was a - supposed to be an air‑ride seat, but the air‑ride mechanism had failed and so it jarred when it went down and it jarred when it came up, it was just - no suspension in the seat at all.

Q. Did you bring that to the attention of Mr Galvin from time to time?

A. Yes.

Q. How did you do that?

A. Sometimes verbally and sometimes in writing on the truck pre‑start sheet.

Q. And did that stay in the truck or in the office, the pre‑start sheet?

A. In the office.

Q. Did you speak to anyone else that was employed by Hardy Brothers about the condition of the Terex truck, apart from Mr Galvin?

A. Yes, Brad Hardy.

Q. Anyone else?

A. Some of the employees.” (T 26)

15. Part of the problem, he said, was that although an occupational health and safety committee had been set up (of which the plaintiff was a member) it never met or did anything (T 31).

16. The plaintiff had injured his back again on 6 October (not 7 October 2009 as pleaded in the statement of claim) by reason of the untreated seat problems in his truck. He wrote this on his work sheet at the end of the day (T 31) but agreed that he did not report it (T 32) to management before the tool box meeting, which took place at about 6.45 am on 7 October 2009.

17. At this tool box meeting, Mr Galvin expressed concerns about employees smoking in the work place. He did not name anyone, let alone the plaintiff. He did not refer to the truck seat issue either. After the meeting was over, he summoned the plaintiff and another worker to his office. This was not because of the truck seat problem, but because they were the persons who had been smoking in the work place.

18. One of the disputed issues of fact is whether Mr Galvin singled the plaintiff out for this apparently not uncommon workplace offence because he was angry the plaintiff had reported an injury as a result of the truck seat. However, as noted above, while the plaintiff dropped in his time sheet containing his account of the seat problem before going to the tool box meeting, he admitted he did not speak to anyone about the seat problem, including Mr Galvin:

“Q. After you'd put it in the time sheet, did you report it personally to anyone in the management of the company?

A. No, I didn't.

Q. On the morning of the 7th - which is the day after you put in the timesheet - what happened?

A. Um‑‑

Q. That's on 7 October 2009.

A. At - at the toolbox talk in the morning‑‑

Q. What time was that?

A. It would have been about 6.45.

Q. Yes, what happened?

A. Myself and another employee were chastised about smoking on the side or in vehicles.

Q. By who?

A. By Matthew Galvin, I believe. And asked to present to his office after the toolbox talk before we commenced work.” (T 32) [Emphasis added]

19. After the tool box meeting, the plaintiff and the other employee (Mr Heidtmann, known by the nickname “Shaky”) went to Mr Galvin’s office as requested. The plaintiff described what happened next as follows:

“Q. Was there anyone else in the office?

A. Not in that immediate office, no.

Q. What did Mr Galvin say?

A. He‑‑

Q. Words - to the best of your memory, what did he say?

A. He asked Shaky about why he smoked in the excavator and Shaky said, "I normally," it was something like, "I'm sorry, I normally step outside on the excavator walkway to have a smoke but I didn't at this particular time. I'm sorry about that."

Q. Then what happened?

A. He was just told, "OK, go off to work. It's a form of reprimand, go back to work.” (T 33)

20. The plaintiff said that after the other worker left, “Matthew Galvin turned to me and quite forcefully verbally gave me a through berating” (T 33) and said:

“WITNESS: Something along the lines of, "I should send you home," or, "You should go home. You're a waste of space." That sort of thing - and quite verbally loud, standing over me and aggressive.

HART

Q. Was anything raised about the incident - sorry - the timesheet entry?

A. Yes. After the verbal berating about the smoking, he brought up the - that I had written on my timesheet yesterday or the day before about a sore back. And then to, "Come with me," and we went across - or out of his office through the outer office - across a gravel drive and into the crib hut where he sat down to do an incident report with me.

DOCUMENT SHOWN TO WITNESS

Q. Is that the incident report that you recall - or a copy of the incident report you recall - that was completed around that time?

A. Yes.

Q. Now there's some notations on it. Do you recall how those notations got on it? Is any of that your writing or is that - do you know or not know?

A. It looks like some of it's my writing.

Q. During the time that incident report was completed, where were you?

A. In the crib hut or the smoko hut, about five or six metres from Matthew Galvin's office.

Q. And do you understand why you went into the crib hut for that to happen?

A. No, I thought it was unusual.

Q. And was there any further conversation about the incident or the time sheet entry where you complained that your back was sore at the end of the shift? Was there any more conversations with Mr Galvin while this report was being completed?

A. Yes.

Q. What did he say? Words, to the best of your ability, what did he say to you?

A. Something like, "It's a crock, it’s made up, it's‑‑

Q. "It's a crock, it's made up"?

A. Something like that or it's a joke or it's not real or this, you know, something along those lines.

Q. Did you respond in any way in words that you can recall?

A. I can't recall, I'm sorry.

Q. Did he ask you how you sustained a sore back?

A. Yes, I believe so.

Q. And what did you tell him?

A. On the Terex seat, broken seat.

Q. And did he say anything then after you said something about the Terex seat was responsible for your back injury? Did he say anything in response to that, that you can recall?

A. I don’t remember, sorry.

Q. And then when you completed this report and you’d had this, if you like, a confrontation, I'll just use that word, with Mr Galvin, how were you feeling emotionally?

A. I was shattered, I was shaking, I was a complete mess.

Q. What did you do then? Did you start work or what did you do?

A. No, I think Matthew Galvin said something like, "I'll get you in to see a doctor," and I said, "I’ll go and see my own doctor," and I said I'd inform him as to what the outcome of that was to be.” (T 34 – 35)

21. The plaintiff described how he felt as he left the office:

“Q. Yes. And then what?

A. Then I walked out after the incident report was done and went to my ute in the car park and I just, I sat there, I was trembling. I couldn’t drive. I was just a complete and utter mess for, I don’t know, maybe ten or 15 minutes and then I don’t really remember, I don’t remember driving home but I remember going to the doctor. I shouldn’t have driven, probably. I don’t know.

Q. And who did you go and see, do you remember?

A. A doctor in Charlestown, a Dr Jackel, I think.” (T 35)

22. Mr Stockley put to the plaintiff that the conversation had been as follows:

“Q. You said to Mr Galvin, "I didn't know I wasn't allowed to smoke. What am I meant to do?" Is that right?

A. Where is that from? What are you‑‑

Q. I'm just putting it to you. That's what you said to him.

A. No, that's not right.

Q. He said to you, "You're well aware you're not allowed to smoke. It's stated in your employment contract."

A. I don't recall that.

Q. He mentioned the employment contract, didn't he?

A. I don't know, I don't recall that.

Q. And then he said, "What do you mean you don't know what is going on with me?" Do you remember that?

A. No.

Q. He said that he'd worked hard to get you a spot in the company.

A. I don't know‑‑

Q. You don't remember that?

A. All - at the time he was not speaking to me, he was screaming and yelling, and I was under an - just collapsed with panic and anxiety, so‑‑

Q. Mr Bailey, I'll just put this proposition to you, and you can agree or disagree with it, do you understand?

A. Yes.

Q. I'm suggesting that he said, "Mate, I worked hard to find you a spot in the company because you weren't happy where you were. I worked hard since you've been with the company to help you progress. You went well for a few months, now you seem to be throwing it away, and I don't understand why you're throwing it away like this." That's what he said to you, wasn't it?

A. That's possible, but I don't recall it.

Q. He said, "I'm going to have to send you home, because if you're going to sit in front of me and say you don't know you're not allowed to smoke them I'm very concerned with what else you might say you don't know you can't do." You don't remember that?

A. I don't remember that, no.” (T 89 – 90)

23. The plaintiff said he had another conversation with Mr Galvin later that day, after he received a certificate from his medical practitioner about his absence from work:

“Q. And once you'd obtained that certificate, did you then ring Mr Galvin at some stage in the next day or so to tell him the situation with your back pain?

A. Yes.

Q. Do you remember what you said and what he said in relation to that when you rang?

A. I rang him that day, immediately after I'd seen the doctor and told him the outcome but I think it went to message bank. I'm not quite sure. I told him the outcome, I'd be off for a few days and then he rang me back that day, a few hours later and‑‑

Q. And what did he say, do you remember?

A. Oh, he made more assertions that the whole claim was a joke or a nonsense or this is not real or something or other and he also made comments that he'd had several witnesses to say that I'd been talking around the worksite to say that I was going to take Hardy Brothers to the cleaners on a worker's compensation claim.

Q. And how did you feel when he said that to you?

A. I was absolutely devastated. That, I'd never said that to anybody. Never happened and there were just more of his standover tactics, intimidation, so I just said to him, "This conversation is terminated, and don't ring me again, I can't speak to you." (T 35 – 36)

24. The plaintiff returned to see his general practitioner several days later. He was unable to return to work because of the “anxiety and stress of the workplace” (T 36) and his employment was thereafter terminated.

25. The plaintiff described these feelings of anxiety and stress as continuing:

“Q. And at that time, how were you feeling? So, you'd seen Dr Jackel I think three times, or a couple of times, and then you saw your own GP. How were you feeling‑‑

A. Not‑‑

Q. ‑‑then, leaving aside your back pain, how were you feeling emotionally?

A. I was a mess. Anxiety, and could hardly function.

Q. And you remember you gave earlier evidence about the depression, and problems you'd had after you'd sold your business, that it continued for some period of time.

A. Yes.

Q. If you're comparing it to then, just looking back now, your condition in 2009 when you saw Dr Anderson on 12 October, what was that like in comparing to how you were before you started with Hardy Bros?

A. I was, was totally different, I was, when I said I was unable to function after I had this incident, but before Hardy Brothers I felt I was, I was working full time, I was functioning socially, and in every way.” (T 37)

26. There is only generalised evidence of prior incidents from the plaintiff about his asserted bullying by Mr Galvin. He referred to one incident in which he considered he had been wrongly accused and unfairly treated in relation to leaving a loaded truck in circumstances contrary to company rules.

27. There is no evidence from other employees of the plaintiff being singled out for abuse or bullying and no other workers were called by the plaintiff to give their observations of any of the specific events described by the plaintiff.

28. As is set out below, the defendant’s witnesses did not support the version of events given by the plaintiff, although there is some corroboration of Mr Galvin being at times abrasive in his general manner.

29. That was effectively the end of the plaintiff’s employment. He had cortisone injections and physiotherapy for his back, which improved. He later had a hip replacement for unrelated reason. During this period, he sought counselling in relation to his ongoing problems with anxiety and depression, further details of which are set out in the section of this judgment on causation.

30. There is very little contemporaneous evidence. The plaintiff made a statement shortly after leaving HBMC’s employ, which was tendered (Exhibit G). This is relied upon to corroborate that the truck seat had been a problem for some time.

31. The plaintiff relies, as to the absence of contemporaneous documents, on the failure of the defendant to answer a subpoena for a series of records on occupational health and safety issues (T 155-156). I note the explanation of Mr Stockley that HBMC had been in liquidation for some time and was in liquidation when the subpoena was issued (T 156-158). Given the delay in commencement of proceedings by the plaintiff, I consider that this is a reasonable explanation. The defendant does, however, concede that, while an occupational health and safety committee was formed, it appears not to have met.

32. I have set out my observations as to the credibility of the plaintiff and his reliability as a witness at the end of my consideration of the parties’ evidence, as those findings need to be considered in the framework of the evidence with which it contrasts, namely the defendant’s witnesses.

Mr Galvin

33. Mr Galvin described the circumstances in which he warned employees about smoking at work in frank terms during cross-examination:

“Q. If one wanted to look at, if you like, the original genesis of that meeting which was the smoking issue, things were more heated probably than were necessary given, if you like, the relatively small issue that was being discussed initially.

A. It was a - I was frustrated at that meeting due to the cumulation of issues over the probably four to six week period leading up to that.

Q. Apart from all the other issues you had to deal with at the various sites for which you were given the job of disciplining operators and other people, correct?

A. Yes, yes.

Q. So it's fair to say, in terms of your emotions running high, that was also part of the problem - is that you had a lot of responsibility and you're working pretty hard at various places - you're on the road a lot, correct?

A. Yes, I was on the road a lot, yep.

Q. Not just Mr Bailey's two or three issues coming to a head - there was a lot of other issues going on in terms of your role in the job.

A. The only issues that caused me stress on that day was the issue that I was dealing with Andrew and Guy.

Q. So let's just deal with how that panned out. Now, I think the smoking issue, we agreed was relating to the value of the truck. It was destroying the value of the truck, correct?

A. Yes.

Q. Of course, Hardy’s had different types of vehicles, didn't they? They had trucks that were owned by Hardy’s like the Terex.

A. Yes.

Q. And trucks that were leased.

A. Yes.

Q. Of course, you would take more attention to the property that Hardy owned, naturally because it's Hardy's asset, than something that might have been a lease that you could‑‑

A. No, that's incorrect.

Q. They're equally important.

A. Correct.

Q. So you would equally find as important smoking in the cabin of a leased truck as equally important as a faulty seat in one of Hardy's trucks.

A. Yes.

Q. They have equal importance in terms of safety.

A. Correct.

Q. So it's the case, isn't it then, that the Terex truck, which was the truck reported in the incident report, was one of Hardy's vehicles, correct?

A. Yes.” (T 111 – 112)

34. He described how he responded to the plaintiff raising the truck issue, which he said was done for the first time at this meeting, as follows:

“A. Not a problem. I remember making a statement that the Terex had an air ride seat, which is why I didn't believe it could cause a back issue.

Q. But you admit, don't you, that Andrew complained about it before, correct, before 6 October, the day of the incident report?

A. No.

Q. The day of the shift report where he wrote it on his time sheet.

A. No.

Q. You disagree with that?

A. Disagree.

Q. I put it you that in fact what happened with the air ride seat was that it didn't have an air ride at all and it would cause jarring because the Eraring site was rough. Do you disagree with that?

A. I disagree. They are built with an air ride seat.

Q. Well, I put it to you firstly, that the Eraring site was rough on occasions - a lot of bumps and holes in it that the trucks had to go over because it was being dug out. Is that correct?

A. Correct.

Q. I put it to you that the Terex had a known problem that the air ride seat did not provide support and that over periods of time, it had been reported as being a problem that needed to be fixed and it was brought to your attention. Do you agree or disagree?

A. Disagree.” (T 114)

35. It was put to Mr Galvin that smoking in a truck was a minor matter compared to a faulty seat in a truck. He did not agree. He also said that seat issues were problems for maintenance, whereas smoking at work was an issue he had to deal with. I consider that to be a reasonable response, given the range of duties he had.

36. Mr Hart submits that Mr Galvin was “combative” in his evidence and demeanour (written submissions, page 1), but provides no transcript references to support this assertion. That was not my observation of his demeanour in the witness box. Mr Galvin answered questions directly and without evasion. He also made admissions against the defendant’s (and his own) interest:

“Q. I take it that this was a big operation, Hardy Bros was doing a lot of work in a lot of different places in that year?

A. Yep, it was a good year.

Q. And it would certainly be the case, Mr Galvin, wouldn't it, that from time to time you'd find your role stressful?

A. Yes.

Q. When things are stressful, emotions sometimes run high. Do you agree with that?

A. In general?

Q. Yeah.

A. Yes.

Q. It's the case, isn't it, that when this meeting did take place on 7 October, voices were raised‑‑

A. Yes.

Q. ‑‑by both of you?

A. Yes.” (T 110)

37. Mr Galvin went on to admit that there had been yelling and unpleasantness, although stating that this fell short of the account given by the plaintiff:

“Q. What you said before lunch was you asked Mr Heidtmann to leave so that you could speak to Mr Bailey.

A. No.

Q. That’s, in fact, what happened.

A. Can we pull up a transcript or‑‑

Q. Sure, but not right now. I’m putting it to you that that’s what you said.

A. No, I didn’t.

Q. The reason that you asked Mr Heidtmann to leave was because you wanted to get one on one with Andrew Bailey.

A. No, that’s incorrect.

Q. And to put it in the vernacular, get in his face.

A. No, that’s incorrect.

Q. And cause him to feel intimidated by the method, the manner, the volume and the words you’ve used. You deliberately intimidated him in that meeting.

A. Is that a question?

Q. Yes. I put it to you that you deliberately intimidated him and raised your voice.

A. No, I didn’t deliberately intimidate him.

Q. And because you yourself were under stress from all the work you were doing and the pressure the bosses were putting on you to keep discipline in the workplace, you lost control. Do you agree or disagree?

A. To which statement? About the‑‑

Q. In that conversation after you’d sent Mr Heidtmann out when you were speaking to Mr Bailey, you lost control of your emotions, didn’t you/

A. I didn’t lose control of my emotions, no.

Q. But it was certainly a heated conversation.

A. There were raised voices, yes.

Q. There was yelling.

A. Raised voices.

Q. By you.

A. By both of us.

Q. And if you like, the straw that broke the camel’s back from your emotional point of view was when he raised the issue of what happened the day before with the Terex because you didn’t believe him, did you, about the Terex?

A. What about it?

Q. What he had an injury the day before - you didn't believe him, did you?

A. I didn't not believe him, no. I asked - I asked to get some records and I asked to try and get some more information about how it happened, and that's what I said before lunch.

Q. Is it the case that the meeting stopped while you went off to find the timesheet?

A. No.

Q. So how did you get hold of the timesheet during that time you were speaking to Mr Bailey?

A. I sent one of the admin staff to get it - as I said before lunch.

Q. So did you call someone into this discussion and say, "Go and find the timesheet."

A. Yeah, and they were about half the distance‑‑

Q. Who was it?

A. I can't remember what admin staff it was.

Q. So you arranged for that to be produced here‑‑

A. Yes.

Q. ‑‑while the meeting was taking place.

A. Yes. That's when I asked Guy to leave, which is what I said before lunch.

Q. So Mr Heidtmann was there - was he‑‑

A. Yes.

Q. ‑‑when the issue of the Terex seat came up?

A. No, not the issue of the Terex seat, the issue of the back injury. The Terex seat was never mentioned.

Q. But he told you he injured his back the previous shift when driving the Terex, didn't he?

A. Yes. Didn't mention anything about the seat.

Q. Now then what I'll ask you to do is try and remember what happened next. It seems that once you'd got that information - that is, the verification which was the shift report in which he'd written‑‑

A. Yep.

Q. ‑‑sore back driving the Terex, you said to him, "We're going to fill in this incident report," or words to that effect.

A. Yes.” (T 120 – 121)

38. I have set these extracts out in full so that the nature and extent of the argument can be demonstrated. It is clear that Mr Galvin was angry because two of his workers had been seen smoking in their trucks, and the plaintiff was upset because he had an ongoing problem with his truck seat. They spoke to each other angrily, the plaintiff filled in a form to report the truck seat and said he was going to see a doctor to obtain a medical certificate, and that was the end of the meeting.

39. However, Mr Galvin’s treatment of the plaintiff needs to be seen in context. I consider he behaved properly by not naming the smokers publicly but seeing them privately. I consider his treatment of Mr Heidtmann appropriate, in that he accepted Mr Heidtmann’s apology and let him leave the office without any punishment. The question is whether his angry words (which I consider were triggered by the plaintiff’s response) was actionable.

40. Mr Hart does not point to any threat of dismissal, or threatening language, or assault, or public shaming of the plaintiff. Instead, he pointed to a series of inconsistencies between Mr Galvin’s evidence, and that of other witnesses, to support the submission that Mr Galvin’s evidence should not be accepted. For example, whereas Mr Heidtmann said this was the second time he had been caught smoking while Mr Galvin said that this was Mr Heidtmann’s first time (T 130). He also pointed to Mr Galvin’s denial that the Terex seat problem had been reported to him as an OHS issue (T 116) and that it was a low priority issue (T 128) when it had been noted as a category A problem.

41. This raises two problems. First, even if all these inconsistencies meant that Mr Galvin’s evidence should not be accepted on any issue, and even if the plaintiff was accepted on every issue, the events in this conversation fail to demonstrate any kind of unsafe system of work. Mr Hart identified three other occasions where Mr Galvin performed a disciplinary role in accordance with instructions from his employer as evidence that Mr Hardy was “sicking him onto employees” (T 150) and that Mr Galvin was told “I want you to discipline Bailey and we can use the dump truck being parked, we can use the two‑way thing and we'll get him for this smoking issue” (T 151). However, that was not the evidence of Mr Galvin and it is inconsistent with the statement of Mr Hardy, which was tendered, and which is set out in more detail below. The evidence is one of a system of Mr Galvin exercising supervisory duties over the plaintiff in circumstances where Mr Hart said that the plaintiff’s case was that “Mr Galvin is the protagonist” (T 29), not that HBMC or Mr Hardy personally had some animus towards the plaintiff. Nor was a case put that Mr Hardy and/or HBMC were or should have been aware of Mr Galvin’s treatment of the plaintiff.

42. Second, the plaintiff’s evidence paints a very different picture to the plaintiff’s description of Mr Galvin to Dr Samuell. He told Dr Samuell that it was “a nightmare from the start” with “a barrage from management”, a cycle of abuse, and that he had been threatened with clenched fists by Mr Galvin who would make people cry “for sport” (Exhibit 1, report 30 August 2015). He did not, however, tell Dr Samuell about the smoking complaints. I have reviewed these apparent conflicts in the evidence in more detail in the section of this judgment relating to the credibility of the plaintiff.

Mr Heidtmann

43. Mr Heidtmann (known by the nickname “Shaky”) was the other worker rebuked about smoking. He apologised for smoking on the work site and the plaintiff agreed that that was effectively the end of his conversation with Mr Galvin:

“Q. When Shakey [sic] was rebuked about smoking, he apologised and that was the end of the conversation. Is that right?

A. I think pretty much. He apologised and was sent back to work the worksite.” (T 88)

44. Mr Galvin’s evidence at T 97-98 was along similar lines:

“Q. Yes, to the best of your recollection.

A. That's what I was doing. So, on the morning after the toolbox, I said, "I'm very disappointed with you both." For Guy, for reasons of his longevity and seniority. I guess I'm not speaking in first person again. To Guy Heidtmann I said something along the lines of, "I'm very disappointed with you, you've been here for quite a long time and you are one of our senior operators. You know a lot better than this. It's quite disappointing for you to do this." And I said something along the lines of to Andrew, that, "I pushed hard to get you this job within our company, and this is how you repay that from myself by - by smoking."

Q. Did Guy respond?

A. Yes, Guy responded.

Q. What did he say?

A. He said he - he didn't have an excuse for what he did, he did know better and he just didn't wait for the appropriate time to exit the vehicle and have a smoke.”

45. Mr Heidtmann gave evidence as follows:

“Q. Just tell her Honour, did Mr Galvin say something to you?

A. Yes, we were both in trouble for smoking in the machines. From what I recall, they went over the company policies and that smoking is not allowed in the machines.

Q. How did you respond to that?

A. I done the wrong thing. I was caught smoking in the machine. Not much‑‑

Q. What did you say?

A. What did I say?

Q. Yes.

A. I just said, "Look, sorry, I won't do it again."

Q. Was that the end of your‑‑

A. Yes.

Q. ‑‑involvement in the meeting?

A. Yes.

Q. Were you present when anyone spoke to Mr Bailey?

A. While I was in the room, we were both spoken to and then once I left the room, I was standing just outside the office door.

Q. While you were standing outside the office door, you couldn't hear what was going on inside, could you?

A. No.

Q. Did you stay outside the office door?

A. Yeah, yeah, we were outside, talking away - Taylor was out there.

Q. Did you see Mr Bailey leave the office?

A. Yes.

Q. Did you speak to him?

A. Not directly, but when he came out of the office, he wasn't very happy about getting in trouble for smoking in the machines.”

46. Mr Heidtmann said that he saw Mr Bailey working on the same site for approximately five months on more or less a daily basis and that he was “just in there doing his job like everyone else” (T 133). He thought it was the second time he had been “dragged into the office” (T 134) for smoking but “not on that site though” (T 134) which may explain the apparent inconsistency with Mr Galvin saying that Mr Heidtmann was a “first offender”.

47. Mr Heidtmann’s evidence did not include any description of Mr Galvin behaving towards himself or others in the way complained of by the plaintiff. It was not put to him in cross-examination that he had observed conduct of Mr Galvin towards the plaintiff of the kind that the plaintiff complains about. That is a serious difficulty for the plaintiff, as Mr Heidtmann’s credibility is as a witness was not impeached in any way.

Mr Hardy

48. A statement from Mr Hardy, who was effectively Mr Galvin’s supervisor, was tendered. The relevant portion is as follows:

“10. Andrew is employed on a permanent full-time basis and he has worked in this capacity throughout his period of employment with the company. He did assist the System Manager, Matt GALVIN, in compiling equipment and electrical safety inventories, but this was not a permanent appointment.

11. I would note that it was Matt Galvin who recommended Andrew for his position with Hardy Bros, on the basis of a relationship which had developed between them in the time Andrew was visiting site as a sales rep.

12. I had regular contact with Andrew at Eraring and I found his work performance to be satisfactory, up until a few weeks before he ceased work.

13. In that period both myself and other members of the management team had observed decline in Andrew’s work attitude, resulting in two significant work incidents which formed the basis of disciplinary action taken against Andrew on 1 October and 7 October 2009.

14. I cannot provide a reason for the decline in Andrew’s work performance and general attitude, but I would deny that there was any effort or actions by Hardy Bros to “harass” or “victimise” Andrew Bailey and his employment prior to this time was secure.” (Paragraphs 10-14, Exhibit 3)

49. This statement is not suggestive of any prior hostility by Mr Hardy personally or by Mr Galvin. It paints a picture of the plaintiff being known by management to have been recommended as an employee by Mr Galvin, and to all being well until a few weeks before the plaintiff ceased work.

50. It is also relevant that the plaintiff accepts (in his own evidence) that Mr Hardy was not present at the 7 October 2009 meeting with Mr Galvin. That is contrary to the information the plaintiff gave to his expert witness, Dr Adams.

The absence of Mr Nathan Bourne

51. Mr Bourne was the project supervisor. The plaintiff complained to him about what had occurred and sought to rely upon passages of his statement purporting to set out Mr Bourne’s replies. As Mr Bourne was not being called, these passages were struck out.

52. Mr Hart submits that I should draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) from the defendant’s failure to call Mr Bourne on the basis that the defendant is the statutory insurer.

53. Beyond the fact that the plaintiff complained about the incident in question to Mr Bourne, he played no part in these events, although the plaintiff said that he had complained to him on other occasions. If his evidence were of any relevance, it is evident from the plaintiff’s statement that he is a witness in the plaintiff’s camp, not the defendant. There is no special burden lying upon the statutory insurer to call him. There is no explanation for his unavailability to give evidence on behalf of the plaintiff, in whose camp he more naturally falls.

54. Accordingly I do not propose to draw a Jones v Dunkel inference against the defendant.

Which version of events should be accepted?

55. When determining issues relevant to the credibility of a witness, the following summary of the correct approach by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EHWC 1884 (QB) at [73]-[74] is helpful:

“73. There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” (“The Business of Judging”, Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1–27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness's evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness.

74. Lord Bingham then added these observations:

“In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.…

… so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.””

56. The evidence of the parties is starkly different. The plaintiff, in his reports to Dr Samuell, portrayed his employment as “a nightmare from the start” (Exhibit 1, report 30 August 2015), where he was victimised by Mr Galvin, in particular in relation to the events on 1 and 7 October 2009. He paints a picture of being harassed and victimised as an employee, particularly after he reported problems with the truck seat which were not actioned.

57. On the other hand, the evidence of Mr Hardy and Mr Galvin paints a picture of the plaintiff as having come to the work site for employment as a result of a recommendation from Mr Galvin, being in regular contact with them over a period of some months without incident, and to problems occurring only in the last weeks of his employment. Mr Heidtmann’s evidence (or lack of it) on this issue is also of relevance. Should I accept the plaintiff as a witness of credit where there is such a disparity in the evidence?

58. An important factor in my assessment of the plaintiff’s credibility is that he was less than frank concerning his medical history not only during this litigation but prior to commencing employment.

59. First of all, he hid from his employers his prior medical history of workers compensation claims for depression and anxiety:

“Q. On the second page you'll see there's a heading, Personal/Occupational Information. Do you have that one before you, Mr Bailey? 303 in the top right‑hand corner.

A. Yes.

Q. You'll see the first question is, "Have you ever had to claim workers compensation".

A. Yes.

Q. And you said, "Yes." And, "Dropped a tin on foot about 30+ years ago. Burnt hand 28 to 30 years ago." You see that?

A. Yes.

Q. That was an opportunity for you, if you were answering the question correctly, to disclose to Hardy Brothers that you'd had a previous psychological injury and had a workers compensation claim, wasn't it?

A. Yes.

Q. You see about four lines down you were also asked, "Have you ever lost time from work due to a work injury", on the same page.

A. Yes.

Q. You've ticked, "Yes, as above. About one week I think. As above about five to six weeks I think."

A. Yes.

Q. You've certainly had a great deal more than one week or five to six weeks off work as a result of your earlier psychiatric injury, hadn't you?

A. Yes.” (T 59)

60. Second, the plaintiff agreed that he had not only failed to disclose his prior claims but also that he had been prescribed medication for these conditions, but that he had stopped taking that medication without consulting his doctor and while working on HMBC’s premises:

“Q. You chose not to disclose that when asked the question.

A. Yes.

Q. Because you were concerned that Hardy Brothers not know that you'd had a previous psychological condition.

A. I don't know.

Q. You certainly never told anyone at Hardy Brothers that you had.

A. No.

Q. You never told anyone at Hardy Brothers that you had been taking medication up until the commencement of the job with that company.

A. No.” (T 60)

61. Third, he was also less than frank about these issues following termination of his employment. The plaintiff acknowledged in his statement of 2 November 2009 (Exhibit G) that he had also been “involved in a similar situation to the current claim, involving harassment by a work colleague and resulting in a workers compensation claim with GIO and that is still ongoing” (paragraph 13). However, even in that statement he was not frank because he claimed only to have had a few weeks off “in the beginning” (paragraph 13), when that was clearly not the case, as he acknowledged in his evidence above.

62. Fourth, his account of his problems at work to the medical experts in these proceedings was not frank. Although the plaintiff told the court that he told his doctor he was stressed because of work problems in September and not later, that is not what Dr Anderson’s notes reflect. The plaintiff was asked:

“Q. Can I suggest to you that on that occasion - that is, on 30 September 2009 - you didn't say anything to Dr Anderson about being stressed at work at Hardy Bros but that is something you reported to him later. Does that sound correct?

A. No, that's not correct.

Q. You see, you went and saw Dr Anderson on 19 October 2009 and on that occasion you said, "I was feeling stressed at work back in September." That's what happened, isn't it?

A. No, that's not what happened.” (T 56)

63. Individually these inconsistencies would be at best unsatisfactory. When viewed as a whole, even if some are explainable as oversights or as an attempt to make a good impression at work, they paint a picture of the plaintiff as someone who is prepared to tailor his evidence to put himself in a good light.

64. This is relevant to the histories that he gave to his doctors, both treating and medico-legal, because they were dependent upon the plaintiff’s history in relation to their determination of the nature and cause of the plaintiff’s psychiatric history. Again, while courts are well aware that medical practitioners (especially treating doctors) make errors when taking histories, analysis of those medical reports shows a deliberate pattern of misstatement by the plaintiff of his medical history.

65. The following factors persuade me that the plaintiff is not a credible or reliable witness:

1. He hid from his future employers his long history of depression and anxiety problems, prior workers compensation claims and a medication regime which may have constituted a safety issue in relation to machine operation. These problems were so recent that they resulted in him having four days off work a month before starting employment with HBMC.

2. The fact that the plaintiff stopped taking his medication was, as I have set out in more detail below, not only unwise for his health but, for the reasons explained in the defendant’s medical evidence, is likely to have coloured his view of events in the workplace, rendering his version of events unreliable.

3. The plaintiff’s accounts of his workplace difficulties to medical practitioners are vary not only from his evidence in these proceedings but also between each other. I have set out some of these inconsistencies in the section of this judgment on quantum.

4. It is clear, even from the plaintiff’s account of his conversation with Mr Galvin, that Mr Galvin was angry not only because the plaintiff was smoking on work premises but because, unlike his co-worker, he attempted to justify his conduct.

66. Mr Hart asks me to find that the plaintiff is a witness of credit whose evidence should be accepted. However, all of the contemporaneous evidence points to the plaintiff performing his work duties without significant difficulty until the last few weeks of his employment. Mr Galvin was entitled to discipline workers for breaches of the no smoking rules and the plaintiff’s response to this quite justified criticism was not the reasonable response of Mr Heidtmann but to obfuscate and claim that he was unaware of this rule. The subsequent angry discussion he had with Mr Galvin is explicable on this basis. I see it as significant that the plaintiff did not tell, for example, Dr Samuell that he was called to Mr Galvin’s office because of the smoking issue.

67. I do not accept the plaintiff’s version of his prior work history or of the events in Mr Galvin’s office. I propose to apply this finding as to credit to the findings of fact in these proceedings.

68. I shall first deal with the issue of vicarious liability of HBMC for Mr Galvin’s conduct.

Vicarious liability of HBMC for Mr Galvin’s conduct

69. In Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 the court found that an employer was vicariously liable for the acts of a supervisor who had been delegated the task of supervising the plaintiff, even though that supervisor was not their direct employee. In those circumstances, it did not matter if the supervisor was acting in direct contradiction of the employer’s directives to carry out his duties in a particular way; his knowledge was the employer’s knowledge and the employer was accordingly liable (at [320]). I accept and apply those findings to the facts of this case.

70. It is clear that Mr Galvin undertook the task of disciplining the employees at the direct request of management, and in particular Mr Hardy (T 101 – 111). However, that does not mean that the knowledge of Mr Galvin (or Mr Hardy) as an employee was sufficient for HBMC to foresee risk of harm. The difficulty the plaintiff faces in this regard is that he kept information from HBMC about his prior psychiatric history, his medication history and that he had ceased taking that medication because he feared HBMC finding out about it while he was driving HBMC’s machinery.

The relevant principles of law concerning safe systems of work and/or equipment

71. The relevant principles to apply to a plaintiff bringing a claim for injury suffered in the course of his or her employment are for the common law as unaltered by the Civil Liability Act 2002 (NSW) but as varied by the Workers Compensation Act 1987 (NSW): Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [5]-[7].

72. The nature of the non-delegable duty an employer owes is set out by the High Court in Czatyrko v Edith Cowan University (2009) 214 ALR 349 at [12]:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.” [Citations omitted]

73. In assessing whether an employer has breached its duty of care to an injured employee, the Court should take into account the principles set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.

74. When determining causation in relation to the circumstances of the accident and breach of duty, the plaintiff is required to show, on the balance of probabilities, that the breach of duty of care by the defendant caused the injury pleaded, which is essentially a fact-driven question: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.

75. In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253, Leeming JA explained that it was necessary for a plaintiff to prove that had alternative measures, such as a variation in system of work or equipment, been provided to the plaintiff, it is likely that the injury would not have occurred. His Honour stated at paragraphs [95]-[96]:

“[95] Unlike duty and breach, the inquiry as to causation is “wholly retrospective [and] ... seeks to identify what happened and why”: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94; 2014 Aust Torts Rep 82-166 at [61]. Putting to one side s.5D(1)(b) (which was not relied upon), causation is wholly factual and turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].

[96] Proof of the requisite causal link between those omissions and an occurrence required consideration of the probable course of events had the omissions not occurred: Strong v Woolworths Ltd at [32]. It was accordingly necessary for Mr Hennessy to prove that had an intermediate step been installed, then it is likely that he would not have slipped and fallen on the evening of 21 March 2005.”

76. In Nationwide News Pty Ltd v Naidu, Spigelman CJ made the following observations about stress in the workplace and psychiatric injury:

“[20] The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness. “

77. His Honour described (at [21]) the task for the trial judge as being to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff.

78. Reasonable foreseeability involves more than mere predictability and the limiting consideration is reasonableness. While workplace stress and even bullying can lead to psychiatric injury, that does not require the putting in place a system of inquiry and/or response even if (which was not the case here) there had been manifestations of mental disturbance at work.

79. Spigelman CJ observed, at [57]-[65]:

“[57] The evidence suggesting some form of mental disturbance is twofold. First, the frequency and intensity of crying by Mr Naidu. Secondly, the observations by co-workers of a significant change in Mr Naidu’s personal behaviour over the years. The former is clearly linked to Mr Chaloner’s conduct. The latter may be linked, albeit less clearly. However, it does not appear that Mr Blinkworth knew of either and Mr Paine may have known about crying on one occasion.

[58] These signs are of a character which suggest an effect on Mr Naidu’s mind of an adverse character. However, what is required is foreseeability of a recognised psychiatric illness. The signs suggestive of psychiatric illness, rather than psychological disturbance, satisfy the not farfetched and fanciful test of foreseeability. However, they do not, in my opinion, reach the level of possibility which would require the employer or surrogate employer to intervene.

[59] Workers are subject to stress in both their working and personal lives which can affect their mental health. Changes in personal behaviour over a period of years may occur for many reasons. So may the response of crying. These responses did not, in my opinion, indicate psychiatric illness to the degree that required a response from the actual or surrogate employer.

[60] An employer, like ISS, or a surrogate employer, like Nationwide News, are not, in my opinion, required to have in place systems of inquiry and/or response, to manifestations of mental disturbance in order to determine whether or not the disturbance is work related and, if so, to remedy the situation. In the present case, at least via Mr Chaloner, both ISS and Nationwide News can be taken to be aware of the systematic course of conduct by him which created the possibility that the disturbance may be work related. They did not, however, have sufficient information about Mr Naidu’s response, even via Mr Chaloner, that the disturbance could be a recognised psychiatric illness requiring intervention.

[61] In any event, in the face of Mr Chaloner’s intentional course of conduct, which brutalised the respondent, it is artificial to analyse his conduct in terms of a duty of care owed by either appellant, through the agency of Mr Chaloner, based on the foreseeability of psychiatric damage together with the application of a standard of reasonableness as to the steps which should have been taken to avoid psychiatric injury.

[62] The imperial march of the tort of negligence is such that, as a matter of practice, it has led the legal profession to abjure the sometimes more demanding requirements of proof of an intentional tort. This has led to an accompanying lack of rigour in the analysis of the elements of a cause of action.

[63] To treat Mr Chaloner’s knowledge as pertinent to determining what a reasonable employer or surrogate employer should have done appears to me to be so inappropriate as to engage the wrong sphere of legal discourse. That conclusion is reinforced by the artificiality of any suggestion that Mr Chaloner was authorised to receive information about, or had a duty to communicate, the results of his own misconduct and that, on that basis, each appellant had imputed knowledge of whatever he knew.

[64] As Gleeson CJ said in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511:

[31] … Furthermore, although deliberately and criminally inflicting injury on another person involves a failure to take care of that person, it involves more. If a member of a hospital's staff with homicidal propensities were to attack and injure a patient, in circumstances where there was no fault on the part of the hospital authorities, or any other person for whose acts or omissions the hospital was vicariously responsible, the common law should not determine the question of the hospital's liability to the patient on the footing that the staff member had neglected to take reasonable care of the patient. It should face up to the fact that the staff member had criminally assaulted the patient, and address the problem of the circumstances in which an employer may be vicariously liable for the criminal acts of an employee. Intentional wrongdoing, especially intentional criminality, introduces a factor of legal relevance beyond a mere failure to take care. Homicide, rape, and theft are all acts that are inconsistent with care of person or property, but to characterise them as failure to take care, for the purpose of assigning tortious responsibility to a third party, would be to evade an issue.

[65] A similar approach is suggested by the observations of Gummow and Hayne JJ in Lepore at [270]:

As Williams v Milotin (1957) 97 CLR 465 at 470 makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence …”

80. The evidence for the plaintiff, at its highest, is angry arguments at work, where the plaintiff’s own conduct (such as smoking in the workplace and not taking his medication) is part of the problem. This was a busy workplace where there was little time for niceties. Mr Galvin’s impatient and abrasive manner expressed itself in words, as the plaintiff’s account of the 7 October event and the few other events about which he gave evidence demonstrate. However, this evidence falls far short of amounting to evidence of sustained bullying in the workplace of the kind the Court of Appeal considered necessary to establish in Nationwide News Pty Ltd v Naidu.

81. There is, however, expert evidence as to the course of conduct of HBMC and its servants or agents by Dr Neil Adams. Do those conclusions form the basis of factual findings supportive of liability?

82. The first issue to determine is the admissibility of Dr Adams’ report, which was not part of the pre-filing documentation of the plaintiff.

The s 318 issue

83. The plaintiff sought to rely upon a report from Dr Adams which the defendant submits is not admissible pursuant to s 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW).

84. Section 318 provides:

“318 Parties limited to pre-filing statement and defence

(1) For the purposes of court proceedings on a claim for work injury damages:

(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant’s pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2) The court is not to grant leave under this section unless satisfied that:

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party’s case.

(3) The regulations may provide for exceptions to this section.”

85. Courts have shown a degree of flexibility in relation to these provisions, erring on the side of caution where the evidence was not reasonably available, or is of an updating variety, or there is some other compelling reason for its tender.

86. Was the evidence not reasonably available? The New South Wales Court of Appeal in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [218]-[219] stated:

“[218] The statement of Mr Fearnside is to be found at Blue 130–138. In it Mr Fearnside analysed in considerable detail the system of work of mountain awareness officers at the resort and expressed an opinion as to the impracticality and disadvantages of the alternative systems of work proposed in Ms Armour’s report. This was dealt with at paras 27, 28, 29, 34, 35, 38, 40, 42, 44, 45, 46, 47, 48 and 49 of the statement. The only reason the statement did not address a system which had a mountain awareness officer at the top of the slope and one at the bottom, but no-one in between, was because such an alternative system was not advanced on behalf of the appellant until the trial.

[219] His Honour’s interpretation of s 318(1)(d) was correct. I do not read that section as requiring a verbatim transcript of the evidence which will be given at trial, but rather a disclosure of the nature and substance of the evidence to be given. The statement of Mr Fearnside satisfied that requirement. The statement did not specifically deal with the alternative system of work advanced by the appellant at trial because at the time the statement was served, that was not part of the appellant’s case. In that respect, it could fairly be said that this evidence “was not reasonably available to the party when the pre-filing defence was served”. It was common ground that the evidence was important, otherwise the objection would not have been taken.”

87. I also note the observations of the New South Wales Court of Appeal in Australian Winch & Haulage Co Pty Ltd v Collins [2013] NSWCA 327 at [139]-[140]:

“[139] As I have indicated, this argument was not put to the primary Judge. In the Supplementary Judgment, his Honour summarised Ports’ argument as follows:

8. [Ports] submitted that at the time of filing the pre-filing statement Mr Collins had available to him the a report of Sharon Flanagan, a clinical psychologist and neuropsychologist, dated 27 December 2001 and a Workers Compensation Commission Medical Assessment Certificate that dealt with his intellectual impairments and the difficulties for him that flowed from these impairments as at 23 July 2006. The report referred to a number of cognitive difficulties from which Mr Collins suffered and the certificate referred to symptoms of memory and concentration problems and some difficulties with planning and judgment. The certificate also contained the following opinion: He has difficulties with calculations — particularly working out how much a certain item might cost. In order to avoid getting muddled now he said he simply passes over a ten or twenty dollar bill.

9. [Ports] argued in these circumstances that “the material concerned” included at least these documents and was material that was reasonably available to Mr Collins when his pre-filing statement was served. It followed from this contention that that s 318(2)(a) of the Act had not been satisfied.

In essence, Ports’ argument at trial was that the material in Ms Flanagan’s report and the Certificate, of itself, was sufficient to require Mr Collins to make a claim in the amended pre-filing statement for the cost of funds management. Ports did not argue that the material available to Mr Collins’ advisers should have prompted them to seek further medical evidence as to his ability to manage large sums of money.

[140] In my opinion, the primary Judge can hardly be criticised for not considering the “obligation of forensic diligence” said to be imposed by s 318(2) of the WIM Act, when Ports’ submission did not rely on any such obligation. More significantly for present purposes, Ports should not be permitted to advance an argument for the first time in this court that relies in part on Mr Collins’ failure to adduce evidence as to the efforts his advisers made to obtain medical evidence before serving the amended pre-filing statement. Had the argument been put, Mr Collins could have led evidence, or sought leave to adduce evidence, addressing what were said to be the gaps in his case.”

88. Courts are particularly vigilant to prevent unfairness where issues of credit may be involved. In Kubovic v HMS Management Pty Ltd [2015] NSWCA 315, the Court of Appeal stated, at [100]-[105]:

“[100] In this case the controversy revolves around rather different material to that with which Australian Winch was concerned. The appellant submits that the “material concerned” was available to the respondent when the pre-filing defence was served because there was information that he attended gym both before and after the accident. The respondent relies on the specific material obtained on 22 October 2013 which not only demonstrated that the appellant attended gym but as the primary judge found, demonstrated, in his view, that he was capable of doing far more than the pre-filing materials indicated.

[101] As will be apparent from the s 318 judgment, the primary judge identified the “material concerned” somewhat differently to the appellant. His Honour distinguished between the statement of the appellant’s disabilities in the pre-filing statement and his disabilities as disclosed in the surveillance evidence. Because the latter “may” contradict the particulars of the appellant’s disabilities as identified in his pre-filing statement, it was relevant to obtain an up-to-date picture. That is consistent with the respondent’s approach.

[102] In my view the appellant’s characterisation of the “material concerned“ for the purposes of the leave issue s 318 required the primary judge to answer cannot be accepted. The mere fact the appellant had mentioned to two doctors that he had attended gym and done exercises in a manner the primary judge concluded did not fairly describe what was depicted on the video may have put the respondent on notice of his gym attendances. It did not, however, as the primary judge concluded, address the question whether his explanation to these doctors was accurate. That question was only answered by the surveillance video.

[103] In circumstances where the appellant’s credit was clearly in issue and in relation to which the acceptance or rejection of his account of his disabilities was likely to be critical, use of material such as the surveillance evidence is clearly relevant to enable the tribunal of fact to determine the reliability of his account.

[104] While I accept that the scheme of the pre-filing regime is intended to reduce costs and favour out of court settlements, the availability of adducing further material albeit subject to a grant of leave, demonstrates that the legislature recognises that despite that, purpose, reports or other evidence not disclosed may be relevant to the ultimate outcome. Not all elements of the forensic battleground have been abandoned. However, clearly a trial judge will be careful about testing the issues posed by an application for s 318 leave conscious of the purpose of the legislative scheme but, too, recognising the necessity to consider what is necessary to serve the interests of justice.

[105] In my view the appellant has not demonstrated that the primary judge erred in concluding the surveillance evidence was not reasonably available to the respondent when the pre-filing defence was served. The inquiry is, as I have said, essentially factual. In this case it is apparent that his Honour regarded the surveillance evidence as providing more specific information relevant to the true extent of the appellant’s disabilities than was available at the completion of the pre-filing process. Having regard to the appellant’s realistic concession that the respondent would suffer prejudice if s 318(2)(a) was satisfied, it was in the interests of justice to permit it to adduce that evidence.” (Footnotes omitted)

89. The high water mark for a report still being able to be relied upon, notwithstanding its exclusion from the pre-filing defence, may be seen from McKay v Palmers Removalists & Storage Pty Ltd [2010] NSWCA 83. Mr McKay brought proceedings for damages pursuant to s 151 Workers Compensation Act 1987 (NSW), having obtained a certificate of mediation outcome from the Workers Compensation Commission prior to commencing proceedings. Both parties in those proceedings had filed vocational material with their pre-filing statement and defence which did not refer to the plaintiff seeking or obtaining a special licence for interstate truck driving, for which the salary was higher. After his accident, the plaintiff obtained an multiple combination licence, which was necessary for interstate truck driving, but as there was no reference in the vocational assessment prepared for the defendant of the plaintiff having obtained the necessary licence, or that he had planned to obtain a multiple combination licence before the accident, or that he wished to be an interstate truck driver, this source of loss was not considered in the reports.

90. The sole reference in the plaintiff’s vocational report was a reference to the plaintiff having driven, and wishing to drive, heavy vehicles. Additionally, unlike the facts here, the plaintiff was not cross-examined about his wish to become an interstate truck driver, as the issue arose in closing submissions.

91. The Court of Appeal held (at [22]–[29]) that this brief reference meant that there was sufficient reference to the plaintiff’s wishes to drive interstate trucks for these to have been issues arising from the vocational assessments. In addition, the failure of the defendant to cross-examine the plaintiff on critical aspects of his claim meant that a challenge to this evidence on the basis of reconstruction was not made out (at [30]–[32]).

92. While the Court of Appeal restored the defendant’s opportunity to meet this new evidence by referring the matter back to the District Court for mediation, I note that the Court did not refer to the provisions of ss 313 to 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in relation to permitting this evidence to be led despite it clearly not having been raised before the hearing. Nevertheless, the question in McKay v Palmers Removalists & Storage Pty Ltd was whether there was sufficient reference to the claim in the vocational assessor’s reports, as opposed to there being no report at all. Their Honours were satisfied that a mere reference to driving heavy vehicles and to the plaintiff having carried out interstate transport jobs was sufficient.

93. Is that sufficient here? Mr Hart submits that the report was foreshadowed in the pre-filing material and that its contents do not take the defendant by surprise. While I note the defendant has raised the issue of prejudice, the defendant has known the basis of the plaintiff’s claim from the first.

94. Taking the same flexible approach to Dr Adams’ report that is shown by the New South Wales Court of Appeal in the decisions referred to above, I consider that Dr Adams’ report should not be excluded from evidence pursuant to s 318.

95. There are, however, other problems arising from the factual material and manner of drawing of conclusions in this report.

Challenges to the facts and contents in Dr Adams’ report

96. As Dr Adams acknowledges, the substance of his opinions is reliant upon the plaintiff’s evidentiary statement which is attached to the report. Mr Hart submits that, if I find that the evidence (or its substantive effect) is proved, then the expert evidence based upon that statement would be “compelling to establish breach of duty” (outline of submissions, p 3).

97. However, as previously noted, there are substantial and serious defects in that statement in relation to the plaintiff’s prior medical history. In relation to Dr Adams’ report, these are as follows.

98. I start by noting that Dr Adams relies upon the plaintiff’s statement for the factual background, and has helpfully attached it. However, that reliance is fatal.

99. First, the plaintiff’s description of his prior workplace injury history in this statement at paragraphs 13 and 14 fails to refer to his extensive medical history.

100. The starting point for this medical history is a report from Dr Wallace, a general practitioner in Leeton (Exhibit 1, tab 10), whom the plaintiff consulted on 7 September 2004 regarding anxiety and work related depression. Dr Wallace noted:

“I saw this gentleman initially on 7 September 2004. He has ongoing problems with anxiety and work related depression. He was sleeping poorly, feeling extremely anxious with reduced motivation, reduced confidence and poor appetite. His situation was related to quite marked stress at work with his new employer. He was commenced on an antidepressant and also required sleeping medication.”

101. Dr Wallace goes on to describe the plaintiff’s need for medication “for a prolonged period” and to state that any improvement would be “slow”. He concluded:

“It would seem unlikely that returning to work would be an option and in fact will continue to jeopardise his health which still remains fragile.”

102. Of particular relevance is Dr Wallace’s observation that the plaintiff has “a history in the past of fluctuating anxiety and depression and again that was related to his situation at work”. This anxiety was continuing despite the fact that he was self-employed and the stress of running the business was something he could, in that situation, control. Dr Wallace’s conclusion that the plaintiff’s ability to cope with work was “hopeless” and that his current predicament was “intolerable” is wholly at variance with the contents of paragraphs 13 and 14 of the plaintiff’s statement.

“Q. See on 20 April 2009, you consulted Dr Anderson and you told him on that occasion you were under a lot of stress and that you may change your job.

A. I don't recall that.

Q. If he has recorded that in your clinical notes, it suggests that you were experiencing stress and you were intending to change your job. You don’t agree with that proposition?

A. I don’t know.

Q. Or were you experiencing stress in April 2009 shortly before you worked for Hardy Bros for reasons other than the job at Hagemeyer?

A. Not that I know of.” (T 56)

145. The plaintiff said that he stopped taking the medication he had been prescribed for his anxiety and depression before going to work for HBMC, and that this was because he would be using heavy machinery and he was excited about his new job. He agreed that this was contrary to his medical advice (T 59) and that when he filled out the necessary forms for employment with HBMC, he had left out any reference to this medication and diagnosis (T 59), although aware of the occupational health safety risks of doing so.

146. Mr Stockley put to him that these problems were still present at or shortly before the time the plaintiff commenced work for HBMC:

“Q. See I suggest to you on 22 April 2009 you spoke to Dr Anderson on the phone and said you were very depressed and anxious and could not go to work and obtained a medical certificate for four days.

A. I don't remember that.

Q. So that is, I'm suggesting to you, within a month of starting work at Hardy Bros, you had four days off because of depressive symptoms.

Q. You just have no recollection of that at all?

A. I have no - I have no recollection.” (T 57)

147. These problems would have been exacerbated by the plaintiff ceasing to take his medication without the consultation or advice of his doctor.

148. The plaintiff’s health was also significantly affected by his longstanding and unrelated hip problems, which resulted in a hip replacement in mid-2016:

“Q. Was your hip also affected by symptoms?

A. Yes.

Q. Whereabouts did you experience those symptoms?

A. In the lower back and left hip.

Q. Did those symptoms in your lower back and your hip have any effect on your mobility?

A. Yes.

Q. What effect did it have?

A. I had difficulty with my left leg, couldn't put my shoes and socks on, things like that. Had limited, limited movement.

Q. Did you have any difficulty when you were walking?

A. Yes.

Q. You've told the Court about some of the daily activities that have been affected by your psychological condition. You remember that evidence you gave shortly‑‑

A. Yes.

Q. ‑‑earlier this afternoon? You said that on good days you could be a little more active than on bad days. Do you remember that?

A. Yes.

Q. So did you find that on the good days when you were capable of more activities, those activities were affected by your back and hip pain?

A. To some degree.

Q. So one of the examples you gave was of doing some house maintenance.

A. Yes.

Q. You found that, to some extent, your ability to efficiently do the house maintenance was affected by your hip and back pain?

A. Yes.

Q. I think you also described domestic tasks that you do with your partner from time to time, such as going shopping and so on?

A. Yes.

Q. They were tasks that were affected by your back and hip pain?

A. To some degree, yes.

Q. You mentioned the difficulty you used to experience, for example, I think it was putting your shoes on. Is that right?

A. Yes.” (T 52)

149. The absence of causation between the plaintiff’s employment and his ongoing symptoms is underlined by his prior medical history.

The plaintiff’s medical history

150. Before commencing a consideration of the plaintiff’s medical history and in particular the medico-legal evidence, I first note the observations of Spigelman CJ in Nationwide News Pty Ltd v Naidu at [24]:

“[24] It does appear that over recent decades the helping professions and thepharmaceutical industry have medicalised many of the normal stresses of everyday life, including working life. The law has not expanded legal responsibility for conduct in the same way. Koehler makes it clear that the common law of Australia will not do so, failing to follow such developments in other common law jurisdictions.”

151. These insightful observations should be borne in mind in cases such as the present. The plaintiff has a significant psychiatric history, including a work-related psychiatric injury resulting from what he claimed to result from bullying and harassment. Looking at the timeline set out in Exhibit G and medical reports, that claim was on foot well before the plaintiff’s employment by HBMC (2 November 2009) but its existence was kept a secret from HBMC by the plaintiff.

152. As set out above, the plaintiff consulted Dr Wallace, a general practitioner in Leeton, on 7 September 2004 about anxiety and work-related depression. This resulted in a claim, as to which Dr Hugh Jolly, a consultant psychiatrist who wrote a report to the plaintiff’s workers compensation insurer, was guarded in terms of prognosis (Exhibit 1). I have set out the relevant extracts above and will not repeat them. The plaintiff also consulted Dr Bourke on 19 July 2005 (Exhibit 1), who reported a flare-up in the plaintiff’s work-related psychological injury. The plaintiff was seeing a clinical psychologist at this time.

153. Apart from the period of his employment with Hardy Brothers (during which time the plaintiff only consulted Dr Anderson on 30 September 2009, complained of overwork and “feeling stressed at work”: page 128 of the plaintiff’s medical tenders), the plaintiff regularly consulted a general practitioner, Dr Anderson, over the next few years, seeking counselling and medication and repeatedly referring to work stress. When Dr Anderson withdrew from practice, the plaintiff told the medical centre practitioners that Dr Anderson had saved his life. He certainly spoke very frankly to Dr Anderson, who considered his condition precluded any work stress or indeed working. For example, Dr Anderson reported to the GIO on 18 December 2007 (Exhibit 1) that with psychological support and continued emphasis on self-help, the plaintiff “may be able to return to productive employment”. As at December 2007, Dr Anderson considered that, at best, the plaintiff was only fit for suitable duties and told he should avoid jobs involving anxiety, stress, concentration or rushing.

154. Between 2007 and 2009 Dr Anderson prescribed a range of medications for the plaintiff’s anxiety and depression, such as Temaze, Cipramil, Seroquel and Dexamphetamine. This is the medication the plaintiff stopped taking without telling his doctors. Also, as noted above, the plaintiff consulted Dr Street, a psychiatrist, describing not only his anxiety and depression but problems with rage and volatility. In a report to Dr Anderson dated 3 April 2008 Dr Street observed:

“It is hard to predict this fellow’s outcome. On the one hand, he has had few previous problems – on the other hand, the chronicity of his response to these two life events himself [sic] orchestrated is not a good sign. This conviction that others are to blame also fails to reassure me.”

155. On 20 April 2009 Dr Anderson noted that the plaintiff’s work stress level was such that he was thinking of changing his job (Exhibit 1). That suggests reasons for leaving his job to work for HBMC for different reasons to those given to the court. On 22 April, shortly before he started work at HBMC, Dr Anderson had to give the plaintiff a certificate for four days off work for stress. However, as noted above, the next entry for the plaintiff’s visit to this doctor he was so dependent upon was not until September 30, 2009 (Exhibit A p. 128).

156. The plaintiff commenced employment with HBMC on 21 May 2009. Dr Street provided a follow-up report on 1 October 2009, which was prior to the incident on 7 October 2009. He said the plaintiff was working “vastly in excess of 40 hours per week” and that his tenure was “uncertain in view of his subjective sense of stress and palpable dislike of the company”. He was concerned that the plaintiff was not at the maximum medical improvement which would be expected from “medication which had been helping significantly”. He said the plaintiff had “little choice” in stopping this medication as he feared that he would be sacked if the medication was detected (Exhibit 1).

157. This appears to be the first time that the plaintiff told his medical advisers that he had stopped taking the medication after commencing work with HBMC. Dr Street expressed concern at the plaintiff’s “diminished insight” in doing so.

158. This, then, was the state of the plaintiff’s health at the time of the incident. These reports carry no reference to other incidents at all, let alone material for which the 7 October 2007 incident was the culmination.

159. At the time of the incident the plaintiff was not taking his medication. There was also the question of its efficacy. Dr Vickery reported on 5 November 2009, shortly after these events, that the medication he had taken in the past was inappropriate and could have contributed to his condition. Dr McLure, reporting on 14 November 2014, noted that withdrawal from the plaintiff’s medication after being on a relatively high dose was likely to have increased his pre-existing anxiety and depression. If, in addition to taking unsuitable medication, the plaintiff had stopped using it without consulting his doctors, this is likely to have further added to his pre-existing problems.

160. Finally, Mr Stockley points to the difficulty of how to explain the plaintiff’s continuing depression six years later, in circumstances where the defendant has, he submits, untangled the causation skein to show that the plaintiff’s psychiatric condition not only predated his employment but continued after that time for reasons unrelated to his employment.

The relevant medical reports

161. The plaintiff relies upon the following medical evidence:

1. A comparison of pre-employment medical examination by Dr Streeter-Smith (12 June 2009) with the medical records of Dr Anderson of September and October 2009 and thereafter;

2. The Medical Panel reports;

3. The observations of Dr Adams;

4. Medico-legal reports prepared for this case (see the reports of Dr Klug) and

5. Medical records under subpoena which were tendered.

162. In his written submissions, Mr Hart refers to the plaintiff’s pulse and blood pressure showing marked and continuing elevation in comparison to the findings recorded by Dr Streeter-Smith which are asserted to be “part of the symptom complex on which the plaintiff’s medical evidence relies”. It is submitted that this evidence provides the plaintiff with objective support on the issue of factual causation and that “the court need not rely solely on the plaintiff’s credit alone [sic]” (written submissions, p 5).

163. Any observations as to the plaintiff having elevated readings in pulse and blood pressure and that this indicates some form of psychiatric injury is impermissible unless supported by medical evidence served in accordance with the Uniform Civil Procedure Rules2005 (NSW). It is not an issue which can be raised in closing submissions, in circumstances where the defendant is unable to meet such a case. In addition, I consider the best approach to the plaintiff’s pre-employment medical records is to view them in their entirety rather than refer to isolated reports such as blood pressure readings.

164. I have previously noted my reasons for rejecting Dr Adams’ report and will not repeat those findings.

165. Dr Klug’s reports (Exhibit A, behind the tab “Medical”) do include consideration of the plaintiff’s prior medical history but his reports, while more helpful, are still inconsistent with the contemporaneous medical evidence. He describes the plaintiff having been prescribed an antidepressant for “a brief period” and as having recovered “quite quickly”. On further enquiry, there was “no history” of relevance and there was no family psychiatric history, although there was a past medical history of hypertension (an observation which confirms my reluctance to speculate about the plaintiff’s high pulse and blood pressure readings).

166. Dr Klug initially considered that approximately 50% of the plaintiff’s current condition is related to his current employment as opposed to his pre-existing symptoms.

167. In a subsequent report dated 5 December 2013, Dr Klug describes the plaintiff as “possibly worse”, giving a total whole person impairment of 23%.

168. In a report dated 14 December 2013, Dr Klug revised his earlier opinion that 50% of the plaintiff’s condition was due to his prior psychiatric history. He sets out his reasons for this change of opinion as follows:

“”Mr Bailey said that after the end of 2004, when he moved to Bathurst, his symptoms improved. When he returned to work he felt a lot better. He said that although his state improved it had not fully normalized.

My understanding is that he was functioning normally at the time of his return to work with Hardy Mining and Construction, which indicates there would have been no impairment on the relevant rating scale. He had moved to Newcastle in about 2006/07, although he could not remember the exact chronology. He worked in a maintenance construction role in a small business for a period of time and then was unemployed again. He then worked as an account manager for eleven months for an electrical wholesaler, a client of Hardy Mining and Construction, at which time he was head-hunted to Hardy’s, again indicating he would have had a nil impairment rating. He said that he was feeling “good at that point”. He had remained under the care of a psychiatrist, Dr Kim Street, having been referred by his general practitioner. He had been prescribed medication, including quetiapine, an antidepressant, and dexamphetamine.

My impression is that his psychiatric conditions of a severe and recurrent major depressive disorder and a panic disorder with agoraphobia were in remission at that time. He had sought appropriate treatment and was monitored by his psychiatrist and his general practitioner.

Consequently, and in response to your specific enquiry in your letter of 13 December 2013, it is my opinion that Mr Bailey’s rating with respect to whole person impairment under the AMA5 / Workers Compensation Guidelines was 0% immediately prior to the injury pre-12 October 2009. It should be accepted that this is a notional date of injury and that his symptoms worsened during his time with Hardy. Prior to going to Hardy, however, he was functioning normally. Even if there had been minor symptoms, using the rating scale, he would still have rated, in my view, as 0%.”

169. The difficulties caused where an expert changes opinion are set out by the New South Wale Court of Appeal in Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153. It is clear from Dr Klug’s observations that the basis for his change of view consisted of the plaintiff’s statements as summarised by the solicitors for the plaintiff in the correspondence to which Dr Klug refers. I have not accepted that the plaintiff’s account of these issues is accurate.

170. There are other problems with Dr Klug’s report. He was clearly unaware of the history of the plaintiff being on significant medication on an extended period in relation to a psychiatric diagnosis, and he was also aware that there was random alcohol and drug testing at the plaintiff’s place of employment as the plaintiff told him so (report 1 May 2013, p 3). He does not appear to have picked up on the fact that the plaintiff stopped his medication to avoid detection or how this would impact on his condition.

171. Despite not being given all the documentation, Dr Klug was satisfied that the plaintiff suffered from depressive problems with significant associated anxiety based symptomatology and major depressive illness. This is because he was under the impression that his earlier illness had either full or substantially resolved. As is set out in more detail above, this is incorrect, and must significantly diminish the impact of his findings.

172. For the reasons already set out above, I do not propose to accept the plaintiff’s evidence as to his prior psychiatric history where it conflicts with the medical evidence. I am satisfied that the plaintiff was receiving psychiatric treatment on a regular basis and that his condition never abated. I regard it as crucial that Dr Klug was never informed that the plaintiff had suspended taking his medication. Although it might be said that Dr Klug should have been more inquisitive about this issue because he was aware of there being random drug tests in the plaintiff’s workplace, he was entitled to a full disclosure of this information by those instructing him on the part of the plaintiff.

The defendant’s medical evidence

173. Dr Samuell notes the plaintiff’s history of abuse which the plaintiff told him was “a nightmare from the start” (p 4, report 30 August 2015, Exhibit 1). He describes being called “a fucking idiot” and Mr Galvin saying “I ought to send you home”; one minute he would be Mr Galvin’s best mate and the next he would be isolated and dominated. He described the plaintiff as agitated and angry throughout the interview.

174. Dr Samuell noted the pre-existing history of anxiety and depression and the likely impact of his ceasing to take prescribed medication for these problems. He noted what he called “extensive documentation” supporting this (p 9). He agreed that the plaintiff had chronic major depressive disorder of moderate severity (p 10) but was unable to understand why he remained significantly depressed six years after the conclusion of his relatively brief employment (p 10).

175. Dr Samuell provided a further report dated 22 January 2016 dealing with the matters raised by Dr Batchelor in her report. He concluded that, given the passage of time, the events from 2009 would have limited explanatory value in relation to his current presentation.

176. Mr Hart dismisses Dr Samuell’s report as being “sour grapes” in that the “the case had been fought and lost in the WCC before he was retained”. He asserts that Dr Samuell is “simply reiterating the defendant’s previous arguments, attacking the plaintiff on credit and causation” and that his opinion, “when considered in the light of the preponderance of other opinions and the plaintiff’s own sworn testimony should be rejected” (written submissions, p 5).

177. Dr Samuell has the benefit not only of the plaintiff’s prior medical history but also of being aware that the plaintiff ceased taking medication, and is able to opine upon the role that may have played in the development of the plaintiff’s symptoms. The history he obtained from the plaintiff as to problems in the workplace confirms at worst a pattern of conflict in the workplace where at times he was praised for doing the right things and at times criticised for doing the wrong things.

178. I accept Dr Samuell’s observations in relation to the absence of causation, particularly with regard to the plaintiff’s problems continuing since that time.

The ProCare reports

179. These reports contribute little to the issue of causation as they merely record the plaintiff’s motivation to seek work.

180. The report of Dr Batchelor is described by Mr Hart as suffering from what he calls “the same problem as Dr Samuell” as “she is apparently determined to discredit the plaintiff, despite the overwhelming support of the previous reports and panel findings”. Mr Hart invites me to read her report “in the light of the credible testimony given by the plaintiff and therefore reject it” (written submissions, p 5).

181. These are very serious allegations to make about an expert witness. I note Dr Batchelor has set out with care the relevant history. She then makes a series of specific findings about the plaintiff’s asserted memory problems, which essentially are that he was simulating or exaggerating impairment (p 9). In her report of 25 January 2016, she states that the plaintiff is “malingering”. This appears to relate to the plaintiff’s scores in relation to memory tests which she said were well below the level that would be expected from his I.Q. in circumstances where the only explanation for the “very unusual combination of responses” was that he was feigning symptoms.

179. In his evidence, the plaintiff said very little about the memory problems which he had asserted in the Workers Compensation Commission proceedings. Neither party had much to say about Dr Batchelor’s reports.

180. I have not accepted the plaintiff as a witness of credit. These observations of Batchelor raise serious issues. It is no answer for Mr Hart to attack her as being “apparently determined to discredit the plaintiff”. In the absence of a more cogently based objection to her evidence, I propose to accept Dr Batchelor’s conclusions.

Damages

184. In view of my findings on liability, my observations on this issue are of a general nature.

185. The plaintiff provided a schedule of damages as follows:

Past economic loss

AWE’s at D.O.A. $1,498 gross, $1,198 net

Current AWE’s allow $1,800 gross, $1,330 net

Average past AWE’s $1,264 net

$1,264 for 373 weeks

1,264 x 373 = $471,472

Less actual earnings from 22.02.10 to 30.06.13 ($14,945)

$456,572

Past superannuation (allow 11% of net past loss)

$50,218

Future economic loss

Allow 70% of current AWE’s $1,330 net

$931 per week factor 365 less 20% for vicissitudes

858 x 365 – 20%

$271,852

Future superannuation (allow 12.18% of net future loss)

$33,111

Total

$811,753

186. The defendant provided the following schedule of damages:

Past economic loss

9 January 2010 to date (361 weeks)

12 hours per week x $20.31 = $243 net per week

$694 - $243 = loss of $451 net per week

$451 x 361 weeks = $162,811

$162,811

Past loss of superannuation

$162,811 x 11% = $17,092

$17,092

Future economic loss

5% Multiplier = $365

$738 - $243 = loss of $495 net per week

$495 x $365 = $180,675 less 20% for vicissitudes = $144,540

$144,540

Future loss of superannuation

$144,540 x 12.18% = $17,604

$17,604

Fox v Wood

Nil

Total

$342,047

187. Although Mr Hart submits that the plaintiff has “an excellent and unblemished work history” (page 5 of his submissions), he had a psychiatric problem for at least five years before the incident of such severity that his doctors at various times considered his progress guarded and that he was only fit for suitable duties. Mr Hart seeks to remedy this by increasing vicissitudes to 20%.

188. In Woolagev NSW [2001] NSWCA 256, a trial judge’s deduction of 30%, taking into account the extent of the appellant’s pre-existing back condition, was not disturbed on appeal. The defendant is content to leave the vicissitudes at 20% and in those circumstances this 20% percentage should apply.

189. I also note the plaintiff had significant hip problems for some time which led to his having a hip replacement in mid-2016. It is unclear to me that either of the parties has taken this into account so, in the absence of submissions on this issue, I would disregard it.

190. As to the appropriate figure for determining what that wage loss is, I accept the defendant’s submission that the best approach is to have some regard to the figures representing the plaintiff’s actual past earnings (Basten JA in Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117at [139]) as opposed to putting the loss at its highest, as the plaintiff has done.

191. Accordingly, if I have erred in my findings in relation to liability and causation, the total past and future economic loss I would have awarded is $342,047.

Section 151D application

192. I note my findings in relation to the plaintiff’s application to extend time to commence proceedings.

193. The plaintiff commenced proceedings on 29 April 2016. There is no affidavit of explanation from the plaintiff. The only submission I received on this topic was from the defendant, to note that there was only presumptive prejudice.

194. I am not sure that this is correct. HBMC went into liquidation in about January 2016, at a time when there were compensation proceedings but these proceedings had not yet been commenced. A number of documents are missing and Mr Hart asks me to draw what he called a “Jones v Dunkel” inference that the absence of the documents sought on subpoena means that I should draw the inference that those documents sought and not produced were documents which would not have assisted the defendant.

195. While the relevance of these documents was not central, these are the sort of difficulties that arise in cases such as the present, where there has been a lengthy delay between the injury and the proceedings, and in circumstances where the parties should be entitled to assume that any relevant documents had been produced for the Workers Compensation Commission proceedings.

196. I am of the view that the presumptive prejudice in these proceedings was higher than usual and that the absence of a full and satisfactory explanation by the plaintiff is a significant problem.

197. However, since the parties effectively ran the case on the assumption that leave would be granted under s 151D, and I have made findings adverse to the plaintiff in any event, I propose to make an order extending time to commence proceedings but to enter judgment for the defendant.

Orders

1. Pursuant to s 151D Workers Compensation Act 1987 (NSW), extend time for the plaintiff to commence proceedings to 29 April 2016.

2. Judgment for the defendant.

3. Plaintiff pay defendant’s costs.

4. Liberty to apply in relation to costs.

5. Exhibits retained until further order.

**********

Amendments

23 March 2017 - Paragraph 9(a) – reference to s 65 of “the Act” has been changed to Workers Compensation Act 1987 (NSW);

Paragraph 111 – reference to “Hardy Brothers” has been changed to “HBMC”; and,

Paragraph 190 – medium neutral citation added to Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117

Decision last updated: 23 March 2017