Borg v Stuart Alexander & Co Pty Ltd

[2016] VCC 1137

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No.  CI-14-06250

JESS ANTHONY BORG	Plaintiff
v
STUART ALEXANDER & CO PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28, 29 July and 1, 2 August 2016
DATE OF JUDGMENT:	12 August 2016
CASE MAY BE CITED AS:	Borg v Stuart Alexander & Co Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 1137

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Cause – claim for pain and suffering damages and pecuniary loss damages arising out of various workplace duties said to be onerous and demanding – injury to lower back as a result of work lifting heavy pallets – injury in the course of employment by twisting in a motor vehicle –  psychiatric injury as a result of workplace bullying, in particular at a meeting at which the plaintiff alleges he was humiliated and criticised – foreseeability of psychiatric injury – allegation of relationship between plaintiff’s immediate superior and another employee – credibility of the plaintiff

Legislation Cited:     Occupational Health and Safety Regulations (Manual Handling) 2007, Regulations 2.1.2, 3.1.1, 3.1.2 and 3.1.3

Cases Cited:Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Woolworths Limited v Perrins [2015] QCA 207; Hegarty v Queensland Ambulance Service [2007] QCA 366; Woolworths Limited v Perrins [2015] QCA 207

Judgment:                Plaintiff’s claim fails.  Judgment for the defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	-
For the Defendant	Mr D E Curtain QC with Ms M Lang	Minter Ellison

HIS HONOUR:

Preliminary

1       The plaintiff, Mr Borg, alleges he suffered both physical and psychological injuries in the course of his employment with the defendant, Stuart Alexander and Co Pty Ltd (“Stuart Alexander”). 

2       He commenced work with Stuart Alexander, a company involved in the distribution of confectionery and tobacco products, in 2008.  He started work as a salesman responsible for various areas, including the Melbourne Central Business District (“CBD”) and a regional area in Western Victoria, including Portland.  His official title was Territory Manager.

3       He ceased work in February 2011 as a result of the injuries he alleges he sustained.  In February 2012, he was made redundant.  He has not worked since.

4       He was self-represented throughout the course of the trial.

5       The physical injury he alleges is an injury to his lower or lumbar spine.  He says there were three work-related episodes which gave rise to this injury. 

6       The first was that over the course of his employment when he was required to perform strenuous and demanding duties, including lifting and carrying various confectionery items and display stands to retail outlets, in particular in the CBD.

7       The second was that on occasions, in particular in 2009, he was required to lift and stack wooden pallets in a storage facility at Huntingdale.  He says the pallets weighed in excess of 25 kilograms and were awkward to lift.  On one occasion in October 2009 when he was lifting a pallet, he felt a sharp pain in his back.  He returned to the office, a short distance away, and was seen by his immediate supervisor, Mr Chris Pell, and another employee, walking in an awkward manner.  He did not officially report the incident.  

8       The third incident he alleges occurred on 28 February 2011 when he was visiting a customer at South Morang.  He turned to retrieve a folder in the backseat of his company vehicle and, in the process, twisted his spine.  He says he developed sudden and severe pain in the lower back, with referred pain to the right thigh.  He ceased work, and has not worked since.

9       The psychological injury he claims to have suffered is in the nature of a Major Depressive Disorder, alternatively, an Adjustment Disorder with Anxiety and Depression.  He says this arose as a result of two episodes or incidents, and also as a reaction to the physical injury.  The first occurred in the course of a sales meeting in late 2009 when he says he was criticised, put down and demeaned by Mr Pell in front of others, when he had not achieved his target sales figures.  Further, in 2009, he was promoted to the position of Team Leader.  This involved managing various staff members including Ms Belinda Knight.  At a Christmas function in 2009, he alleges Mr Pell told him that he (Mr Pell) was having an affair with Ms Knight.  As a result, he was not able to take appropriate disciplinary action concerning Ms Knight’s unsatisfactory work performance.  This led to a stressful situation where he was unable to perform his duties and he demoted himself back to the position of Territory Manager.  This contributed to his psychological injury.  Further, because of the spinal injury, he suffered a psychological reaction as a result of being unable to work and pursue recreational, social and sporting activities, in particular with his children.

10      As a result, he claims pain and suffering and economic loss damages.  He alleges negligence by Stuart Alexander and breach of statutory duty pursuant to the Occupational Health and Safety Regulations 2007 (“the Regulations”), in particular:

§  Regulation 2.1.2, requiring the provision of information, instruction and training

§  Regulation 3.1.1, requiring identification of hazardous manual handling tasks

§  Regulation 3.1.2, requiring control of risks identified; and

§  Regulation 3.1.3, requiring review of risk control measures.

11      The particulars of negligence alleged are set forth in the Statement of Claim.[1] They are general but include:

[1]Court Book (“CB”) 5-7

·        requiring the plaintiff to perform heavy, repetitive and strenuous work.

·        requiring the plaintiff to park in circumstances where adequate permits or permissions were not arranged for him to undertake deliveries.

·        exposing the plaintiff to repeated bullying, humiliation and intimidations.

·        permitting the plaintiff to be subject to supervision by Mr Pell in circumstances where the defendant knew or ought to have known that Mr Pell was engaged in a sexual relationship with Ms Knight, who was a member of the plaintiff’s team.

·        failing to conduct any or adequate risk assessment of work duties undertaken by the plaintiff and/or failing to heed the advice of those risk assessments.

·        failing to provide the plaintiff with adequate counselling to enable him to perform his employment duties.

·        failing to remove Mr Pell and Ms Knight from the same workplace so as to limit the impact upon him from their sexual relationship.

·        subjecting the plaintiff to bullying, humiliating, intimidating and excessively critical conduct by Mr Pell by reason of his drawing to attention the poor work performance of Ms Knight.

· failing to comply with the Regulations.

A brief summary of the evidence

12 In accordance with interlocutory orders previously made, Mr Borg’s evidence consisted of his affidavit filed in support of the serious injury application, sworn 12 February 2012,[2] and his Statement made 10 June 2016.[3]  He gave further viva voce evidence and was cross-examined. 

[2]Exhibit A – CB 40-50

[3]Exhibit B – CB 51-54

13      A summary of the material from his affidavit and statement is as follows:

14      He was born in December 1969 and is forty-six years of age.  He has two children, aged eight and ten, and shares custody of them with his former wife.

15      He completed Year 10 at school before commencing a cabinetmaking apprenticeship at Currie Furniture.  He terminated the apprenticeship after he found out that dust was affecting his asthma, and commenced employment with Pilkington.

16      On 3 October 1989, Mr Borg strained his back during the course of his employment with Pilkington.  He lodged a claim, which was accepted, and he received payments for approximately three years.[4]

[4]CB 41

17      He returned to employment installing partitions and workstations in 1991 for Executive Office Interiors, and continued in that employment for about three years. 

18      Around 1995, Mr Borg moved to the Gold Coast and worked at Sea World and as a bar waiter, before returning to Melbourne in 1997 and commencing work at Qantas as a customer service consultant until 1999.

19      Mr Borg resigned to start his own business as a franchisee for Courier Please; however, after eight months, stopped work to help his sister, who had been diagnosed with cancer. 

20      In 2001, Mr Borg commenced administrative work for Citylink and remained in that position for about three years.

21      He commenced casual work with Imperial Tobacco as a merchandiser in 2005, and remained in this position until 2008, when he began searching for a more stable income.

22      On 6 October 2008, Mr Borg commenced working for Stuart Alexander as a Territory Manager selling confectionery and tobacco products. 

23      The role involved driving the company car, a small four-wheel drive vehicle, to visit up to twenty customers per day.  Mr Borg was required to spend anywhere from five minutes to an hour or more with each customer, and, at least once every eight weeks, he was required to travel to, and remain for a week in the Portland-Warrnambool area to visit Western District customers. 

24      The job required him to carry samples of the merchandise, display and point of sale material to the various retail outlets.  He would advise the customer of any current deals, ensure prices and specials were displayed in the venue, and build displays for the products.  The building of displays could take anywhere from ten to thirty minutes, and involved significant twisting and bending.  He was not provided with a trolley from his employer.  He would use a trolley from the customer if available, otherwise he would carry the merchandise and display material manually.[5]

[5]CB 43

25      Once a week, Mr Borg would need to take samples to customers in the CBD.  He transported these in a carry-case on wheels, which he said weighed, when loaded with stock, around 15 to 25 kilograms.  He asked his employer if he was entitled to park in loading zones and was advised that if he was fined he would have to pay the fine out of his own pocket.  Mr Borg said he was instructed to park in a private car park and walk to the customers with all stock, and display equipment needed for the day.  If a customer required anything extra, he would be required to walk back to the car to retrieve it before walking back to the customer’s location.[6]

[6]CB 43

26      After nine months of working for the defendant, Mr Borg was promoted to the position of Team Leader.  This position required him to be responsible for supervising twelve Territory Managers.  Also, he was responsible for a storage shed at Kennards (Huntingdale) rented by Stuart Alexander, to ensure all stock had been delivered and stacked, and to empty the pallets that were stacked ready for collection.  About once a week, he would manually unload the pallets, put the stock away and stack the pallets.  The pallets weighed in excess of 25 kilograms.[7]

[7]CB 44

27      In his statement, Mr Borg alleges that sometime in October 2009, he was moving pallets at the storage shed when he felt a sharp pain in his back.  The office of Stuart Alexander was a five-minute drive away.  He drove back to the office, where his manager, Mr Chris Pell, and a fellow employee, were standing outside smoking.  He slowly got out of the vehicle and after observing the way he was walking, Mr Pell asked him what had happened.  He was told to put a report in.  He did not do so as he feared that this would somehow impact negatively on his new role.  He did not go to the doctors and took Panadeine Forte to manage the pain.  He continued working with occasional discomfort in his back.[8]

[8]CB 44

28      In his role as Team Leader, Mr Borg had to supervise Territory Managers.  One who was part of his team was Ms Belinda Knight.  He began having issues with her, including that she did not visit clients, did not display stock in the venues, and absenteeism.  He reported these problems to Mr Pell, who he says did not respond.  He started to feel pressure that his team would be unable to meet its sales target.[9]

[9]CB 45

29      Mr Borg alleged at the 2009 office Christmas Party, Mr Pell bragged to him about having an affair with Ms Knight.  After hearing this, Mr Borg was worried that due to their relationship, there would be no way to discipline Ms Knight and improve her quality of work.  Around this time, Mr Pell also terminated the employment of another sales representative.  Mr Borg then decided to demote himself and return to the position of a Territory Manager, concerned it would be impossible to meet targets with Mr Pell failing to assist him in managing Ms Knight.[10]

[10]CB 52

30      Mr Borg returned to work as a Territory Manager.  After about three months, he was required to attend a team meeting where there was discussion with Mr Pell about individual sales targets.  Mr Borg was third in line.  According to Mr Borg’s statement, he explained he had been unable to meet targets as he had only recently returned to the role of Territory Manager.  He said a number of his customers had changed and he needed further time to build rapport with the new customers.  In response, he said Mr Pell openly criticised him and questioned his ability in front of his colleagues.  He remained silent in response to this criticism.  He said he felt panic, and struggled to control his breathing.  Following the meeting, Mr Borg met privately with Mr Pell and questioned why he had been so undermining in the team meeting.

31      Mr Borg continued to feel pressure as Victoria was behind in its targets.  He made the decision to advise head office of the affair between Mr Pell and Ms Knight.[11]

[11]CB 45

32      On 28 February 2011, he parked his car at Westfield Shopping Centre in South Morang to visit a customer in his role as Territory Manager.  He turned to the left to grab a folder from the back seat of the car and developed a severe and sudden pain in his right lower back.  He reported the incident to the sales coordinator and ceased work that day.  He lodged a WorkCover claim, which was accepted, and he has remained in receipt of WorkCover payments.[12]

[12]CB 46

33      He went to see Dr Roshan Irani, and was prescribed analgesics.  He was referred to rheumatologist, Dr Alex Stockman, who sent him for an MRI scan.[13]

[13]CB 46

34      Dr Stockman suggested Mr Borg undertake physiotherapy treatment, and referred him to Mr Alex Chan.  He continued to attend treatment with Mr Chan for about twelve months. 

35      Dr Stockman also referred him to Dr Middleton, occupational health and rehabilitation consultant, to review his medications.  He met with Dr Middleton on 27 July 2011. 

36      Dr Irani referred him to Dr Thomas, consultant in rehabilitation and pain medicine, to assist him with a pain management plan.  He met with Dr Thomas on 9 September 2011.  He has been provided with a home-based exercise training program.[14]

[14]CB 47

37      Mr Borg experienced ongoing problems with anxiety and depression.  In March 2011, he was referred to psychiatrist, Dr Stella Kwong.  He commenced psychological treatment halfway through 2012; however, ceased after six months.[15]

[15]CB 47

38      He has continued to attend Dr Irani on a monthly basis and consult Dr Kwong every six weeks. 

39      He currently takes the following medication:

·        Cymbalta, an anti-depressant (daily)

·        Serequel, an anti-psychotic

·        OxyContin; and

·        Endep (daily).[16]

[16]CB 47

40      He claims he suffers severe pain and restriction of movement in all directions in his lumbar spine.  He says the pain in his lower back radiates into his right thigh, causing numbness and tingling at the back of his right leg. The pain is worsened when lifting, carrying his children, bending, kicking a ball, or sneezing.  He is no longer able to play with his children, play golf or attend the gym as he enjoyed doing before his injury.  He requires the assistance of his mother with household duties, including mowing the lawn and washing.[17]

[17]CB 49

41      Psychologically, he says he is now prone to angry outbursts, often has low mood and suffers from anxiety attacks.  He has a hard time trusting others, being social and has lost confidence in meeting women.[18]

[18]CB 49

42      In viva voce evidence, Mr Borg tendered a number of photographs and gave evidence of dimensions of the products and stands he was required to place and erect at the various retail outlets.[19]  He tendered photographs relating to placement guidelines.[20]  Further, he tendered photographs of his vehicle and a wheeled bag and stock in the rear of it.[21]

[19]Exhibit D

[20]Exhibit E

[21]Exhibit F

43      At the time he left work, he was earning $55,000 gross per year, together with a telephone and car package.  In total, he was paid about $70,000 gross per year.  It was his intention to work to retiring age or beyond.

44      In cross-examination, he said he could not recall any induction course.  He said he was taken on the road with another representative and shown what to do.  He admitted his memory was not good.  He was taken to documents which suggested he had undertaken a three-week intensive training program.[22]  He denied attending this.  He said he never had the company’s occupational health and safety policies explained to him.  He knew he should not undertake activities which put his back at risk.

[22]CB 451-484

45      Before he had the lower back problems, he went to a gym at Taylors Lakes.  He went there three or four times a week.

46      The work involved distribution and setting up stands of various confectionery items and cigars.  The confectionery included Mentos, small bottles of Tabasco and various types of chocolates.  It was not his role to deliver stock; that was organised through a wholesaler.  Sometimes he would bring stock to the outlet to replace out-of-date stock.  He worked independently and reported each day or two to Mr Pell.  It was suggested to him that he was required to make about fourteen calls per day in suburban areas and ten to twelve calls in regional areas.  He disagreed, and said he was required to make eighteen calls per day.  He had a machine or computer to record orders, which were sent electronically.

47      He had targets in relation to new products.  He would also have to meet and greet the shop proprietors.  He serviced milk bars, service stations and kiosks.  There were plastic and cardboard display stands.  There was also a metal stand in relation to certain types of chewing gum, called Aqua Kiss and Blast.  He was required to carry various material.  This included items of stock, stands and a folder with papers.  He was provided with a case with wheels, but could not fit the stands into the case.  He would carry up to ten items of Mentos at 1.5 kilograms per item.  The bag alone would weigh 3 or 4 kilograms.  The folder might weigh another 3 or 4 kilograms.

48      He would put up display stands in the stores.  He would carry the stands in his car.  The stands were not heavy but were awkward.

49      He said he did not suffer any pain from carrying these stands or erecting them.  He made no complaints to anyone about this activity.  He did not tell any doctors that this caused any pain.

50      At one point he asked Mr Pell to provide him with a parking permit.  He agreed he received a credit card to pay for parking fees and his expenses were never queried.  He said it was very strenuous to park in one place in the CBD and then walk around.  He complained, in the sense that he asked for a parking permit.

51      He accepted that in 1989, he suffered an injury to his back.  He was taken to various reports where he suggested to doctors that the injury was to his mid back or thoracic spine.  He was off work for three years, brought a claim in court and was compensated. 

52      He was taken to radiology reports and references to opinions by doctors in relation to the 1989 injury, which recorded injury to his lower or lumbar spine.

53      Aside from lifting the wooden pallets, he agreed he had never complained to anyone at work about the duties being too heavy, repetitive or strenuous.  In relation to the pallets, it was suggested to him that it was not his responsibility to unload or stack the pallets.  That was to be done by the driver who delivered the items.  He disagreed.

54      In relation to the injury to his back while stacking pallets in October 2009, he accepted it was not formally reported but he had returned to the office hobbling and was seen by Mr Pell and another employee.  Mr Pell asked him what was wrong and told him to report the injury.  He did not, as he was scared any such report might jeopardise his job.  After that injury, he suffered ongoing discomfort in his back.

55      He was taken to the clinical notes of the general practice, Community Hub in Sydenham, which he attended.  Over the period 2010 and 2011, he accepted there was no mention to doctors at that clinic of any problems with his back.  He said he did not feel as if he needed to mention it.  He recalled a conversation with the Human Relations Department, in particular Sarah Scott-Paul, where a previous employee who had a back injury had lost his job.

56      He said when he started at the company there were rumours of an affair between Mr Pell and Ms Knight.  At the Christmas party in 2009, he drove Mr Pell.  Mr Pell was drunk and bragged about having an affair with Ms Knight.  He (Mr Borg) started the conversation and said Ms Knight looked “quite hot”.  He was taken to his affidavit[23] where he said in fact the Christmas party was in 2010.  He said that was a mistake.  He did not discuss the conversation with anyone else.  He did tell his wife.

[23]CB 45

57      In relation to the sales team meeting in the middle of 2010, Mr Borg said he felt upset at being singled out for not reaching his targets when not all of the other sales representatives had met theirs.  He went to Mr Pell’s office afterwards and had a further conversation where Mr Pell apologised.  He said there were raised voices and others in the office could hear what was going on.  He agreed he said words to the effect that he wanted to get over it and get on with things.  He did not go to a doctor afterwards.

58      He was taken to appraisal documents.[24]  He agreed Mr Pell told him he was a valued employee.  He left the role of team leader and returned to that of sales representatives.  He kept the same pay.  He said he was not bullied at any other time.

[24]CB 437-446

59      In relation to Ms Knight, he said he complained about her performance.  There were occasions where he checked whether she had attended a particular retail outlet.  Despite her registering such an attendance, she had in fact not been there.

60      He was having marriage problems throughout 2010.  He had been married in 2009 and split with his wife in early 2011. 

61      He was asked about the various jobs he had undertaken since he left school.  Most were for three years or less.

62      He was taken to documents[25] which showed he had time off to look after his sick son in the period before 28 February 2011, when he injured his back visiting a client at South Morang.  He reached into the backseat to grab a folder.  He did not lift the folder but had his hand on it.  He said it was the twisting that hurt his back.

[25]Exhibit C

63      He was taken to an email from Mr Pell of July 2011.[26]  He agreed that an attempt was made by Mr Pell for him to return to work and various forms of support and assistance were suggested.

[26]Exhibit 9 – CB 275-6

64      Before he started work with Stuart Alexander, his back was good.  He had the odd problem with a pulled muscle.  On one occasion, he picked up a piece of paper and his back was sore.  He took some Panadeine Forte and it was okay.

65      He was cross-examined about an attendance at the Footscray Hospital[27] on 28 July 2007, where it was recorded that he had been unable to walk because of a backache that arose after heavy lifting.  There was a further entry where he was said to have strained his lower back while gardening.  There was an entry in the clinical notes of the Medical One Clinic of 11 February 2008 where he complained of muscular spasm when he twisted to get something from the backseat of a car.  He could not recall telling anyone about these incidents.[28] There was an attendance at a hospital for mid-back pain which he thought was as a result of pleurisy.  He thought that it took his back some weeks to get better after these incidents.

[27]Exhibit 2 – CB 311

[28]Exhibits 3 and 4

66      He disagreed when it was put to him that the heaviest stand he had to lift and carry was 5 kilograms.  He said, on average, he would have to carry stands ten or eleven times per day.  When he delivered the stands on his regional visits, he was able to park in the car park.

67      He acknowledged that carrying the stands to the various stores did not hurt his back, although his back was uncomfortable and he took Panadeine Forte from time to time, which was given to him by a friend who he could not identify.

68      He said it was Mr Pell who told him that he had to move the pallets in the storeroom.  He acknowledged this had not been referred to in his affidavit or statement.

69      He went to see a rehabilitation group called Recovre in 2015, and a number of alternative areas of employment were suggested.  He felt he could not do any of them.

70      On a better day, he would rate his pain as 8 out of 10.  On a bad day, it would be 10 out of 10.  He takes OxyContin every day.  He looks after his children 50 per cent of the time, with the assistance of his mother and aunt.

71      A Mentos stand was obtained and weighed in Court.  The weight was 1.88 kilograms.[29]  Mr Borg said he might carry four of these in a day to one customer. 

[29]Exhibit 5

72Evidence was given by Mr Christopher Pell, the Business Manager of Stuart Alexander.[30]  He was directly responsible for managing the Territory Managers, Team Leaders and Sales Co-ordinators of the company.  According to his witness statement dated 7 June 2016, he had been employed in that position since mid-2007 and was responsible for managing Mr Borg.[31]

[30]Exhibit 7 – Mr Pell’s statement

[31]CB 56

73Mr Pell agreed Mr Borg commenced working for Stuart Alexander in or about October 2008 as a Territory Manager.  He said Mr Borg would have undertaken a company induction, a three-week intensive training program which included an introduction to company policy and procedures, and involved accompanying a sales representative for on-the-job training.  He said Stuart Alexander held ongoing occupational health and safety days.[32]  Mr Pell was there on the first day of the induction.  All the matters referred to in the induction program[33] were gone through.  Mr Borg was given an occupational health and safety handbook.  He signed off on the document, although it was then sent to Sydney and could not be found.  He (Mr Pell) was familiar with the roles of both Territory Manager and Team Leader, as he had done both.

[32]CB 56

[33]CB 451 – part of exhibit 8

74Following the completion of the induction, Mr Pell said Mr Borg was provided with a company car, a Toyota RAV4, and was allocated a specific territory to service.  Mr Borg would carry out this work independently and reported to Mr Pell at least every second day.  Mr Pell would aim to meet with him at least once a week.[34]

[34]CB 56

75In carrying out his duties, Mr Borg was expected to visit customers and potential customers.  He said the metropolitan calls would consist of around fourteen calls per day, while in regional areas with further travel times, the guideline was about ten or twelve calls per day, and Mr Borg would be required to spend between three minutes to half-an-hour with each client.  He said Mr Borg was also required to visit regional-based clients for several days every eight weeks.[35]

[35]CB 56

76At these visits, Mr Borg was required to promote new products and enquire if clients needed any further stock orders.  He said Mr Borg would not deliver the stock, but place orders.  Any order for new stock would usually involve setting up point of sale display stands that went with the stock.  Mr Pell said that such displays would be “small counter units or floor displays”.[36]

[36]CB 57

77Mr Pell recognised that Mr Borg was required to carry samples of merchandise into the stores.  The largest item of stock was a Mentos mint pack, consisting of 40 packets of Mentos and weighing approximately 1.5 kilograms each, and the largest display item was a Mentos 30 Gum cardboard stand, weighing approximately 5 kilograms.[37]  He thought it would have been hard for Mr Borg to wheel the bag and carry the stands.  There was never any complaint from Mr Borg about any difficulty with his work.  In particular, Mr Borg said nothing about the job of carrying and erecting displays as being too demanding.  There were no complaints by other Territory Managers to his knowledge.  There was never a complaint about any problem with driving the long distances to Portland.

[37]CB 57

78Mr Borg was provided with a wheeled suitcase to carry samples of stock around the CBD.  Mr Pell estimated that the suitcase would have weighed a total of 7 kilograms when full, and denied the Mr Borg’s assertion that it weighed 15 to 25 kilograms.  He would not have needed 25 kilograms of stock for the purposes of his role.[38]

[38]CB 58

79Mr Pell said that Mr Borg was provided with a credit card for car parking charges when he was visiting clients in the CBD.  He had no recollection of Mr Borg asking him about getting him a permit to park in the CBD.  He said Mr Borg was instructed he could park in any car park in the CBD, with no restriction, and pay the fees with the credit card.[39]

[39]CB 58

80In his statement, Mr Pell praised Mr Borg’s job performance as a Territory Manager and acknowledged that he was promoted to the position of a Team Leader around 1 July 2009.  Following this promotion, Mr Borg was responsible for the supervision of six people and performed minimal handling of stock or display material, although he would still handle some stock when assisting staff.[40]

[40]CB 59

81He was, however, concerned Mr Borg saw himself as more of a friend to his staff, as opposed to a supervisor.  Ultimately, he believed that is why Mr Borg decided to transition back to a Territory Manager, which occurred on approximately 10 May 2010.[41]  He did the role of team leader well, although struggled a little in providing the required authority.

[41]CB 59

82Mr Pell denied that Mr Borg was responsible for the Kennards storage shed.  He said it was never part of Mr Borg’s job to stack the pallets.  The transport company had to ensure the pallets were delivered, unloaded and the empty pallets placed back on the truck.  The pallets were CHEP pallets and were owned by the truck delivery company.[42]  

[42]CB 59

83He had no recollection of Mr Borg hurting his back in October 2009 and said that he would have immediately reported the injury to Human Resources, regardless of whether Mr Borg’s wanted to make a report.[43]  Mr Pell had a strict attitude to work safety.  Even minor injuries had to be recorded.

[43]CB 60

84Mr Pell said that it was normal practice for the company to have regular sales meetings about key targets and performance.  Mr Pell recalled a meeting where Mr Borg was questioned about his low sales results and he responded by saying “I just can’t sell it”.[44]  His sales figures were down by as much as 40 per cent in some areas.  Mr Pell responded to Mr Borg with something like “that’s what your negotiation skills are for”.[45]  Mr Pell stated that at no time was his voice raised or was he aggressive, and the meeting proceeded without further issue. 

[44]CB 60

[45]CB 60

85Mr Pell confirmed that Mr Borg approached him after the meeting in his office and asked why he was questioning his negotiating skills.  Mr Pell said he calmly told Mr Borg he had good negotiation skills and he had not intended to question them.  The meeting concluded when Mr Pell apologised to him and he accepted that.  Mr Pell denied publicly criticising Mr Borg in front of his colleagues at that or any other meeting.  He further denied Mr Borg was ever subjected to bullying, intimidation, humiliation or psychological abuse.[46]

[46]CB 61

86Mr Pell said on 28 February 2011, Mr Borg had returned to work from two weeks compassionate leave, where he had been caring for his ill son, when he attended Westfield Shopping Centre at Plenty Valley to visit a customer.  He said that Mr Borg alleged that he reached for a folder on the back seat of his car and injured his back.  This was the first time Mr Borg had reported any back injury or pain during his employment.[47]

[47]CB 62

87After the alleged injury, Mr Pell reported that Mr Borg took time off work.  He was offered a return to work plan in July 2011, including modification to his vehicle and a decrease in his clientele; however, Mr Borg said he was not mentally fit to return to work.  Mr Pell further offered Mr Borg the opportunity to work with another territory manager; however, this was rejected.[48]

[48]CB 62

88Mr Pell said he had been married for almost thirty years and denied Mr Borg’s claims of an affair with Belinda Knight or bragging about it at the Christmas Party in 2009.  He admitted to going on a business trip with Ms Knight to Mt Gambier.  He admitted to conducting several of her performance reviews; however, denied any issues with her in 2009.  He did admit she had some performance issues some time later.[49]

[49]CB 63

89In relation to psychiatric injury, Mr Pell said he had no reason to believe that Mr Borg might suffer psychiatric injury because of his work duties.  He had no reason to believe Mr Borg was unable to cope emotionally with his work, until after he ceased work and made the allegations in the proceeding.[50]

[50]CB 61

90Mr Pell was taken to the email of 8 July 2011 setting out details of a meeting between himself, Mr Borg and Sarah Scott Paul.[51]  He confirmed the email set out the matters discussed and the steps he and others at Stuart Alexander were prepared to take to assist Mr Borg to return to work.

[51]Exhibit 9

91Mr Pell was cross-examined by Mr Borg.  He agreed that the original vehicle provided by the company may have been a Mitsubishi Outlander.  He thought that the maximum amount of stock which Mr Borg would be required to carry would be 7 to 8 kilograms.  He said the heaviest stand was the Mentos gum cardboard stand which weighed about 5 kilograms.

92Mr Pell accepted Mr Borg was provided with a wheeled suitcase to make his job easier.  He was the only Territory Manager to have such a case.  Mr Pell said the case would weigh about 1 kilogram.

93He was shown a City of Melbourne document regarding parking in the City Mall and Swanston Street.[52]  He said he had never seen that document before nor recalled Mr Borg raising any issue with him regarding parking permits.

[52]Exhibit H

94It was put to Mr Pell that Mr Borg would use the Guylian chocolate stands when he did the country work.  Mr Pell said that was not the case, because even at Woolworths and Coles in country areas, the stores were not big enough to use those stands. 

95He denied that on two occasions Mr Borg suggested he obtain a parking permit to enable him to park in the CBD.  He denied he ever told Mr Borg that he could only park in one car park.  He said Mr Borg was free to use the company credit card to park in as many car parks as necessary.

96Mr Pell thought the CHEP pallets measured something between 1.2 to 1.5 metres square.  He disagreed you could fit fifteen pallets in the storage shed, even given it was 21 square metres.  There were shelves, and stock, and it was necessary for there to be space for people to move.  He denied Mr Borg had ever been told to stack the pallets in the storage shed.

97He was asked why, in his statement, he had not referred to any metal display stands.  He said he did not take them into account.

98It was suggested that in the sales meeting Mr Pell should have taken Mr Borg aside and spoken to him about the reduced sales, rather than doing it in front of the other employees.  He said that all of the Territory Managers were spoken to in the sales meetings and their results and targets discussed. It was suggested to Mr Pell that Mr Borg received no praise for his achievements in that particular meeting. He denied that, and said both the positives and negatives were discussed.

99He agreed Kate Knight, one of the people present at the sales meeting, was still employed by Stuart Alexander.  He denied the discussion about negotiation skills undermined Mr Borg in the presence of others.

100It was suggested by Mr Borg there should have been some form of counselling after the office meeting.  Mr Pell said he did not see any reason for that.  He denied there was any “screaming match”.  Mr Pell said that they each agreed to move on and after this meeting there were no signs of any further concerns.

101At the Christmas party in 2009, Mr Borg denied being drunk.  He had something to drink.  Mr Pell agreed Mr Borg had driven him to the function.  He denied using the words suggested by Mr Pell in relation to Ms Knight.  He denied drinking shots at the bar.  His wife picked him up from the venue.

102Mr Pell said it was not unusual for him to go on country trips with other Territory Managers although he could not recall if he had been on any country trips with Mr Borg.

103Evidence was given by Mr William John Younis.  He is currently the State Business Manager for Stuart Alexander. During the time of Mr Borg’s employment he was the National Operations manager.  

104He said all employees of Stuart Alexander undertake an induction program.  The program was two to three weeks.  It includes a range of policies and procedures including Occupational Health and Safety.

105In relation to parking of company cars, he said in about 2009 or 2010, the issue of parking in loading zones came up.  He could not recall from which state the enquiry came but thought it might have been South Australia.  He did not recall Mr Borg as being the person who raised the issue.  He said employees were provided with credit cards to pay for parking which remained the company policy.  It was not appropriate to park in loading zones as the cars were not classified as station wagons.

106There was a guideline where Territory Managers were expected to call between fourteen to eighteen customers per day.  It was only a guideline and depended upon the area and the customers.

107He thought the total weight of the luggage case used by Mr Borg, including stock and folder, would be in the range of 12 to 15 kilograms, but would vary.

108In relation to the storage shed, he could not understand why Mr Borg was stacking pallets.  He said the contractual arrangements with the company who delivered the stock was that the drivers had to unpack the stock and retrieve the pallets.  A premium was paid to the company for this service.  It was a term of the contract that no pallets were to be left.  It was not expected the employees of Stuart Alexander would stack pallets; however, some tidying up might have to be undertaken to keep the area clear.

109Mr Borg’s demotion was not something which concerned him as it was handled by Mr Pell.

110In relation to the alleged affair between Mr Pell and Ms Knight, he was told of rumours to that effect by Ms Alana Burns of the Human Resources Department of the company.  He went to Melbourne to make enquiries about the allegation. He had coffee with Mr Pell, who denied the allegation absolutely.  He did not investigate the matter further as it was only rumour and innuendo.  No formal complaint had been made.  None of the other Managers referred to the matter. He accepted Mr Pell’s explanation and did not take it further.  He did not speak to Ms Knight.

111Evidence was given by Ms Sarah Scott Paul, and her statement made 26 July 2016 was tended.[53]  

[53]Exhibit 12

112She commenced employment with Stuart Alexander in 2006 as a Human Resources Officer, based in Sydney.  In 2011, she was the contact for all employees in relation to workplace injuries.  The first time Mr Borg reported any injury was in relation to the 28 February 2011 incident when he twisted his back in his car.  She was the return to work officer.  Numerous plans about modified duties and reduced hours were put to him.  She worked with his doctors.  He was uncooperative and difficult.  Ultimately he informed her that he would not work due to psychological issues.

113Mr Borg spoke to Ms Paul about the stress of his relationship breakdown.  She knew nothing about allegations of bullying.

114She said the company had a strong Occupational Health and Safety policy and she visited the Melbourne office approximately every six months to work with Mr Pell on OH&S updates.  She arranged for someone to attend to perform ergonomic assessments on company cars.  Mr Borg was part of this.  There were kits in each car which covered manual handling.

115In cross-examination, she said she believed Mr Borg had a vendetta against Mr Pell.  Although she could not produce any signed documents, she believed Mr Borg had undergone the induction program, as did all employees in each state. She now worked for another employer and did not have access to HR documents.  She said Stuart Alexander took their OH&S responsibilities very seriously.

116She worked with Ipar, a workplace rehabilitation provider, to assist Mr Borg to return to work and recalled having dealings with an employee named Natasha. She was fairly sure the plan involved the possibility of Mr Borg working from home.  She acknowledged that the option of carpooling had been put to Mr Borg.  She did not think that it was economically viable for Stuart Alexander to pay for taxis to transport him to and from work.  She felt Mr Borg was not genuine in trying to return to work.

117She could not recall any discussion about an employee in Queensland who was ridiculed for reporting a backache, although denied that she would have mocked that person, as it was against her professional integrity.  She recalled Mr Borg speaking about difficulties in his personal relationship.  It was a conversation they had.

Medical evidence

118Evidence was given by Dr Alex Stockman, rheumatologist.  His various letters and reports were tendered into evidence.[54]

[54]Exhibit J

119Dr Stockman first saw Mr Borg at the referral of Dr Irani in March 2011.  At that time, he received a history that on 23 February 2011, Mr Borg had twisted his spine while reaching for a folder in the backseat of his car and suffered severe low-back pain.  The only relevant prior history he received was that some five years before, Mr Borg had picked up an object from the floor and hurt his back.  That pain subsided after about six weeks.

120Mr Stockman did not receive any history of Mr Borg’s low-back problem in 1989 when he was off work for two to three years and had an MRI scan.  He said he would have noted this had he been told. 

121He did not receive a history of other back incidents over the years in 2008 and 2009. 

122When he was taken to extracts of the medical reports relating to the 1989 injury, he said that when he saw Mr Borg in 2011, he was probably suffering from the same disc problem, although it would depend upon whether Mr Borg had been pain free in between.

123He said it was in Mr Borg’s interests to seek some form of employment.

124Mr Borg’s treating general practitioner, Dr Roshan Irani’s, various reports were tendered[55] and she gave evidence.

[55]Exhibit K

125She first saw Mr Borg on 28 February 2011.  The history was of a back injury on that day, when he turned to retrieve a folder from the backseat of his car. She referred him for physiotherapy and to Dr Alex Stockman.  She was not told that he had attended the emergency departments of various hospitals in 2007 and 2008 to report back pain.  She was told of the 1989 injury, but not that Mr Borg had taken three years off work and that radiology revealed a small prolapse at L5 -S1.  Mr Borg had told Dr Irani he had returned to work after the incident, but the company had closed down.  She agreed this information would have been relevant.

126She did not receive a history that about eighteen months before his first attendance he had hurt his back handling pallets, or that he had been in pain or discomfort since.

127She said she accepted Mr Borg as truthful and that he appeared genuine to her. She received a history of his marital problems including that his wife had walked out.  He found it hard to cope.

128She had prescribed OxyContin for five years.  The antidepressant medication was prescribed by the psychiatrist.  She had referred Mr Borg for pain management and to Dr Middleton, a pain specialist.  She had tried to reduce his dose of OxyContin maybe a year or two ago.  It had been some years since she had physically examined his back.

129     She said she would have discussed returning to work.  He was not ready in 2011.  In the last five years there had been no significant improvement in his lower back pain. The situation was complicated because of psychological issues and he had developed Chronic Pain Syndrome.

Credibility of the Plaintiff

130Mr Borg gave evidence and was cross-examined over a considerable period. His evidence was vague.  Regularly, he said he had difficulty with his memory, although, rather surprisingly, said he was able to “remember the truth quite well”.[56]  Account should be taken of the fact that he is acting for himself and was unfamiliar with all the legal concepts and how to give evidence.  Even accepting this, I found Mr Borg an unimpressive witness and have significant reservations about his credibility.  I say that for the following reasons:

[56]T4 L11

·        He did not describe to any doctor, whether treating or consultant, accurate details of his considerable past history of lower back pain and related work restriction.  In particular, he did not disclose that he suffered a significant lower back injury in 1989 which left him off work for about three years, nor that radiology showed a small disc prolapse at L5-S1.  He did give a history to some practitioners of a mid-back injury.[57]  However, in my view, this was an attempt to distinguish the 1989 injury from the back problems he suffered in 2011.  His evidence that he could not recall precisely where the injury to his back was in 1989 was unimpressive.[58]  Further, he did not disclose details of the various episodes of lower back pain which took him to the Emergency Department of several hospitals in 2007 and 2008. The only description given was that he had suffered back pain while picking up a piece of paper. Nowhere did he suggest that in fact he had suffered months of lower back pain after heavy lifting.

[57]Dr Paoletti at T74 and CB 120; Mr Battlay at T75 and CB 183; Mr Buzzard at T75-6 and CB 161; Mr Dooley at T76 and CB 135

[58]T73-4

·        To no treating doctor nor consultant did he complain of lower back injury, pain or restriction following lifting pallets, or because of the strenuous activities involved in carrying and setting up displays in the various stores he serviced.[59]  His explanation that no-one asked him is disingenuous.  His complaint that he suffered pain for about a week after lifting the pallets and then discomfort over eighteen months after October 2009 stands in stark contrast to the fact that he attended a number of doctors at the Community Hub Medical Centre over that period without any complaint[60] and that he kept working without interruption.  I do not accept his evidence that he failed to make any written complaint because he was scared his job may be affected.

[59]T67 L5-8

[60]T88

·        His evidence that carrying the items of confectionery around the CBD in a wheeled trolley was strenuous is difficult to accept.[61]  The items were relatively light, particularly for a young man who was fit and active at the time.

[61]T69 L4

·        His evidence about the Christmas party in 2009 was unimpressive.  In his affidavit sworn February 2012, he said the Christmas party was in December 2010.[62] In his statement made in 2016, he changed the date to December 2009. I am of the view this change was as a result of reading the statement of Mr Pell,[63] and realising he had got the date wrong.

[62]CB 45

[63]T90-91

·        Mr Borg’s evidence that he was demeaned and singled out for critical attention at the sales meeting, and his reporting of scurrilous allegations that Mr Pell bragged of an affair with Ms Knight at the Christmas party in 2009 to the head office in late 2010, stand in complete contrast to the assessment by Mr Pell of Mr Borg in the Appraisal Review of August 2010.[64]  In particular, the following was said:

“… I thank Jess for his efforts and contributions over the past 12 months, I have enjoyed working with him, and look forward to seeing him develop into his role as Territory Manager with S A & Co.”[65]

[64]T103-5 and CB 437-446

[65]CB 446

131     For these reasons I found Mr Borg an unsatisfactory witness and lacking in credibility.  I do not accept many of the allegations he makes.

Credibility of the Defendant’s witnesses

132The principal witness called by the defendant as to liability was Mr Chris Pell. He was an impressive witness giving a fair account of the facts and circumstances of Mr Borg’s employment. Throughout Mr Borg’s cross-examination, he gave responsive answers and was prepared to accept, on occasion, errors in his statement.  An example was that according to his statement, Mr Borg was issued with a Toyota RAV-4 motor vehicle when he commenced employment.  When it was put to him that in fact Mr Borg was provided with a Mitsubishi motor vehicle, he accepted that as “quite possible”.[66] There were other examples where he made reasonable concessions.

[66]T210

133Of significance was his evidence as to the alleged conversation of an affair with Ms Knight.  He strongly refuted Mr Borg’s allegation.  He became distressed in the course of this evidence, which I assessed as a quite genuine response to a particularly sensitive matter.  I accept without reservation his evidence not only that there was never an inappropriate affair with Ms Knight, but further, that the conversation with Mr Borg at the Christmas party in 2009 where it was alleged he was in a relationship with her, either did not occur, or was some innocent conversation twisted by Mr Borg to give it a sinister meaning.

134I did not detect in his evidence any attempt to put the interests of Stuart Alexander ahead of his obligation to tell the truth.

135Likewise, Mr Younis and Ms Scott Paul were impressive witnesses.

Conclusions – physical injury

The course of employment activities

136The defendant owed Mr Borg a duty to take reasonable care against the risk of foreseeable injury in the workplace.  The duty extends to the provision of a safe place of work, a safe system of work and appropriate instruction and supervision.

137Mr Borg alleges that in the course of his duties as a Territory Manager, in particular when he was working in the CBD, he was required to perform strenuous and demanding activities, including lifting and carrying heavy boxes of confectionery and display stands and erecting them in retail outlets.  He says these activities were made more difficult and demanding as Stuart Alexander were not prepared to provide him with an appropriate parking permit which would enable him to park his company vehicle close to those retail outlets.

138He alleges negligence and breach of the Regulations.

139This allegation requires the examination of a number of aspects:

§    his induction and training in the workplace

§    the weight and awkwardness of the materials he was required to carry

§    the issue of the provision of car parking

§    the activities he was required to perform at the retail outlets; and

§    importantly, whether he suffered any injury as a result.

140Mr Borg’s evidence about the induction program, which it is said he undertook at the commencement of his employment in 2008, was not completely clear.  At one point he said he could not recall undertaking the induction program.[67] Immediately following that, he denied he had undertaken an induction of any sort.[68]  Then, when asked whether he had had any induction in relation to company policies, he said he could not recall.[69]  Then, when he was taken to what was said to be his induction program[70] and to the various dates in October 2008 when he was said to undertake various activities, he denied going to any of the programs.[71]

[67]T47, L8

[68]T47, L27

[69]T48, L3

[70]Exhibit 8

[71]T77, L14-20

141He relied upon the fact that it was usual for an inductee to sign the program acknowledging it had been undertaken.  No such signed document was produced by Stuart Alexander.  Mr Pell’s evidence was that enquiries had been made of the Sydney head office but no such signed document could be located. I accept that evidence.

142I prefer the evidence of Mr Pell, Mr Younis and Ms Scott Paul that every employee of Stuart Alexander was required to undertake an induction course. The course involved a number of aspects, including Occupational Health and Safety.  I accept Mr Borg underwent the induction as evidenced by the induction program documents.[72]  I further accept the evidence of Ms Scott Paul that she attended the Melbourne office and ran Occupational Health and Safety courses on a regular basis, attended by all Territory Managers, including Mr Borg.  I accept her evidence, and that of the other witnesses for the defendant, that occupational health and safety was an important focus of the employment environment for Stuart Alexander.  Of significance is that the defendant went to the length of retaining an ergonomic expert to make assessments and give advice in relation to use of the company vehicle.  I accept there were kits in the vehicles which covered manual handling.

[72]Exhibit 8

143I am of the view that the induction program and occupational health and safety training was appropriate in the circumstances.

144In relation to the stock and stands, the evidence regarding the weight and the awkwardness of the material that Mr Borg was required to carry and erect, varied.  Mr Borg said that the various confectionery items, promotional stands, wheeled carry case and folder weighed 15 to 25 kilograms.  Mr Pell said the total weight would not have exceeded 7 kilograms.  Mr Younis’ evidence was that the weight of the items carried would have been between 12 to 15 kilograms.

145The focus of Mr Borg’s evidence was in respect of his duties in the CBD.  In the course of his cross-examination of Mr Younis, Mr Borg said that his duties took him to the CBD about once per week.[73]  Further, regardless of the weight of the items Mr Borg was carrying, they were all, with the exception of the display stands, placed in a wheeled case.  There was no evidence from Mr Borg that erecting the stands caused him any particular difficulty.  There was nothing in his Statement of Claim about any particular difficulty with his duties in suburban or country areas, save that visiting up to eighteen customers per day was demanding.  In this regard, I prefer the evidence of Mr Pell that he was expected to service twelve to fourteen customers per day, but that the number varied depending on the circumstances.

[73]T341, L21

146Again, I prefer the evidence of Mr Pell that whatever the precise weight of the items he was required to carry, it was not particularly substantial nor in the region of 15 to 25 kilograms as Mr Borg said.  I reject his evidence that in his CBD duties, the lifting and carrying of the confectionery and stands was particularly difficult and awkward.  If his evidence is to be accepted in this regard, it is remarkable he never made a complaint to Mr Pell or anyone else about this.  I accept the evidence of Mr Pell that neither Mr Borg nor any other of the Territory Managers complained of their duties.

147I prefer the evidence of Mr Pell that he was not approached by Mr Borg so as to try to secure some form of parking permit to enable him to park closer to the outlets which he was required to visit.  That would be unnecessary given the provision of a credit card to enable Mr Borg to park in car parks around the city area.  I reject his evidence that there was any restriction on being able to park in a number of car parks, and prefer the evidence of Mr Pell in that regard.  Mr Borg produced a City of Melbourne document relating to parking in Swanston Street and the Bourke Street Mall.[74]  However, it is of little relevance, as it relates to a scheme to enable vehicles access to businesses in those specified areas, over restricted hours.

[74]Exhibit H

148While parking a car in a city car park, unloading a wheeled case and possibly carrying some stands may, on one day a week, require reasonable energy and focus if one had to attend ten or twelve customers per day, it would not be beyond the capabilities of a relatively young and fit man in a sales position with a company such as Stuart Alexander.  More importantly, from a legal perspective, requiring an employee to carry out such duties, would not result in the breach of the employer’s duty to guard against the risk of foreseeable injury.

149Of most significance is the fact that Mr Borg acknowledged that regardless of how difficult or demanding were his duties, he suffered no injury as a result of those duties.  He accepted that he had never suffered any pain.[75]  He did not complain to anyone that the tasks were stressful, difficult and awkward.[76]  Mr Borg was unable to identify any doctor that he had complained to about these tasks.[77]  None of the doctors, either treating or consultant, received any history of any problem arising from the tasks.

[75]T66, L13

[76]T66, L15

[77]T66-67

150Mr Borg said that he thought the carrying of the stock and stands contributed to a subsequent injury.  He said “it was like the nail (sic) that broke the camel’s back”.[78]  However, there is no medical opinion to support such a proposition.  I accept that were a worker to suffer some physical injury which predisposed him to subsequent injury, for example where a person’s spine suffers some insult and that at a later time a relatively minor task causes a prolapsed disc, then the original injury would be responsible for the subsequent serious consequence. However, that is not the case here.  Absent any medical opinion linking his work duties with the subsequent soft tissue injury suffered in February 2011, I am not satisfied he suffered any injury over the course of his employment as he alleges.

[78]T66, L24

151Absent any injury, loss or damage, Mr Borg’s claim as to negligence by his employer over the course of employment cannot be maintained.  Actual damage or injury is a necessary element of the tort of negligence.

152Nor am I satisfied the activities referred to breach any of the Regulations. I am satisfied there was adequate information, instruction and training (Regulation 2.1.2). I am not satisfied the activities involved “hazardous manual handling” (Regulation 3.1.1). Therefore, there was no risk to be controlled (Regulation 3.1.2).

The lifting and stacking of the pallets

153Although there is no specific allegation in Mr Borg’s Statement of Claim, he alleges that in about October 2009, he was lifting pallets in the company’s storage shed when he suffered sharp pain in his back.  He returned to the office and spoke with Mr Pell and another employee.  He chose not to make a formal claim about the injury, as he believed it would negatively impact upon his employment prospects, and gave evidence that Ms Scott Paul had criticised a fellow employee for reporting an injury around this time.

154It is clear the incident was not reported to any treating doctor, nor referred to in the history provided to the various consultant practitioners.  The clinical records of Mr Borg’s treating general practice, Hub Medical Centre,[79] were tended and there is no reference to that incident or its aftermath.

[79]Exhibit 18

155In evidence, Mr Pell denied he had ever seen Mr Borg “hobbling from his car”, or ever been told of any problem lifting the pallets.  He said that had he been advised of the injury, he would not only have recommended Mr Borg reported it, but he would also have filled out a claim form and reported it himself.  He said injury reporting was treated very seriously at Stuart Alexander.[80]

[80]T200-201

156Likewise, Mr Younis said occupational health and safety obligations and reporting of injury was strictly enforced within the company.  Ms Scott Paul denied having had any conversation with Mr Borg or anyone else in which she criticised a worker who had reported a back injury.

157Both Mr Pell[81] and Mr Younis gave evidence in relation to the arrangement with the transport company who delivered the pallets.  Mr Younis said an additional fee was paid to the transport company so the driver would unpack the pallets when they arrived.[82]  He said the pallets were owned by the transport company, and not Stuart Alexander.  He said pallets were not left at the storage shed, but were taken away by the transport company.

[81]T199

[82]T361

158I prefer the evidence of Mr Pell and Mr Younis that the arrangement with the transport company was for the drivers to unpack the delivered goods and remove the pallets. I do not accept Mr Borg’s evidence that it was ever part of his duties to lift and stack the pallets. I do not accept his evidence that he hurt his back while lifting the pallets as he alleges. He was not reluctant to complain about previous back injuries in 2007 and 2008. He says he complained to doctors at a hospital when his back became sore after picking up a piece of paper. That is hardly consistent with someone being stoic about a lower back injury. Further, I do not accept that he was concerned about his prospects within the company and that was the reason he did not report the incident. From all the evidence it appears to me he was treated well by the company. That is reflected by the fact that he was promoted from Territory Manager to Team Leader, and then when he decided to return to sales, maintained the higher salary. Further, I was impressed by the steps taken by Stuart Alexander to return him to the workforce,[83] and the commendation by Mr Pell in the performance review of August 2010.[84]  That treatment hardly speaks of a company prepared to jeopardise prospects of an employee because he reported a back injury.

[83]Exhibit 9

[84]Exhibit 21

159The allegation of an injury to his lower back is completely inconsistent with Mr Borg’s failure to report the incident, complete any injury form and complain to any doctor.  Further, he did not take any time off work and resumed his usual duties without incident.  In these circumstances, I am not satisfied he injured his back in the manner he describes.  His claim in respect of this lifting incident fails.

The twisting in the car incident

160According to his Statement of Claim, Mr Borg alleges that on 28 February 2011, he twisted in his motor vehicle to the rear seat and attempted to lift a folder.  He said he suffered immediate pain in his back and shortly afterwards went to see his mother’s general practitioner, Dr Irani.

161In cross-examination, Mr Borg accepted that he turned from the driver’s seat to pick up the folder in the backseat.  It was the act of twisting which caused his back pain.  It was not the weight of the folder which caused injury.[85]

[85]T116-117

162In his final submissions, Mr Borg said that had he undertaken an appropriate occupational health and safety induction program, then this injury would not have occurred.  He said that if there had been a “competency check” he would have learned to not twist, but to get out of the car and retrieve the folder by opening the rear door.  He did not explain what a “competency check” was or what instruction it would have given him.

163As earlier stated, I accept the evidence of Mr Pell and Ms Scott Paul that Mr Borg undertook an appropriate induction program, which made reference to a range of occupational health and safety matters.  I further accept the evidence of Ms Scott Paul that an ergonomic assessment of the motor vehicles was undertaken.  I reject Mr Borg’s claim that any further instruction would have reduced the risk of injury.

164I accept that on 28 February 2011, he did suffer a soft tissue injury to his lower spine as a result of twisting in the vehicle.  That is the opinion of most of the medical practitioners who have treated and examined him.  I accept that the incident caused an aggravation of the degenerative process at L5-S1.  I accept that this injury has required treatment by a range of practitioners and specialists and has caused ongoing pain and restriction to Mr Borg.  I further accept he has suffered a Major Depressive Disorder which, at least in part, has been brought on by this physical injury and the pain and restriction it caused.

165However, I do not accept that there was any negligence on the part of the defendant which was a cause of this injury.  It is beyond the obligation of any reasonable employer to provide instructions or restrictions upon a person in Mr Borg’s position about whether to twist from the front seat to the back while sitting in a company car.  It would not be appropriate for an employer to tell its employee not to reach behind to retrieve something from the backseat, but rather to gain access by opening a rear door.  Stuart Alexander did not have a duty to provide any such instruction.

166Further, I am not satisfied that the twisting motion involved any breach of the Regulations. I am not satisfied the twisting motion involved a foreseeable risk or hazard which might give rise to a lower back injury. The task did not involve hazardous manual handling.

167The plaintiff’s claim in respect of this allegation fails.

Conclusions – psychological injury

The sales meeting

168According to the Statement of Claim, Mr Borg alleges he was bullied, humiliated, intimidated and excessively criticised by Mr Pell in the course of a sales meeting attended by other Territory Managers.  This occurred in late 2010 or early 2011.  He says he was told by Mr Pell that he had failed to meet his sales targets.  He responded by saying that he had only recently returned to the role as a Territory Manager and a number of his customers had changed.  He had not been able to resume the relationship with clients required to secure his targets.  He said that Mr Pell then openly criticised him in front of his colleagues and told him it was expected he would use his negotiation skills.

169He said he remained silent for the rest of the meeting.  Shortly afterwards, he requested he see Mr Pell in private.  He told Mr Pell he thought the criticism was unfair.  He said Mr Pell apologised.  There was a bit of a screaming match.[86]  He suffered a significant psychological reaction, which has resulted in the development of a Major Depressive Disorder.

[86]T99, L1

170In cross-examination, Mr Borg accepted that he agreed with Mr Pell to “move on” and never raised it with him again.  He resumed his duties without interruption.[87]

[87]T99

171Mr Pell gave a different version of events.  He said generally, he had a good relationship with Mr Borg and thought him competent in his duties.  He was responsible for promoting Mr Borg to Team Leader and wanted him to continue in that role.[88]  He said the purpose of the “cycle meetings” was to discuss sales figures and targets and he spoke to each of the Territory Managers.  It was all done in a group forum.  He said that Mr Borg had underachieved in his sales results by about 40 per cent.  He enquired about why this was the case.  He said Mr Borg’s response was that he simply could not sell the products.  Mr Pell said to him “Jess, that’s what your negotiation skills are for”.[89]  Nothing further was said and the meeting continued.  He said that after the meeting he walked up to Mr Borg, who asked to see him in his office.  Mr Borg said he felt he had been undermined.  Mr Pell said that he had not undermined him and was not questioning his negotiation skills.  He denied his attitude was degrading or even questioning.  He agreed he did apologise, and Mr Borg said that he just wanted to move on.  There was no complaint beyond that and the matter was not mentioned again.  He denied raising his voice or becoming angry.

[88]T203

[89]T205, L21

172I prefer the version of events given by Mr Pell.  Aside from issues of credibility, Mr Borg’s account stands in stark contrast to the manner in which he was treated by the company, to the fact that there was no further complaint made, that he resumed his work duties without interruption and that he was commended by Mr Pell in the performance review.

173I am not satisfied the Major Depressive Disorder which Mr Borg subsequently suffered was reasonably foreseeable to his employer.  I am not satisfied there was any reason for Mr Pell or others at Stuart Alexander to suspect that Mr Pell was in otherwise good psychological health and capable of undertaking his duties.  I am not satisfied it was reasonably foreseeable that a questioning of Mr Borg’s capacity to attain certain sales figures could result in significant psychological decompensation.

174The authorities have established that while it may be well known that certain psychiatric illnesses may be triggered by stress, it is a “much larger step” to conclude all employees are at risk of psychiatric injury as a result of work stresses.[90]  Further, absent any evident signs of psychological vulnerability, an employer is entitled to assume the employee is sufficiently robust to be able to carry out his or her tasks.[91]  The attendance at the sales meeting and the discussion about Mr Borg’s failure to meet sales targets is not sufficient, in my view, to suggest the possible risk of psychiatric injury as a result.

[90]See Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 at paragraph[34]

[91]Koehler (supra) at paragraph [36]

175The authorities further say that convenient litigious hindsight should not be used to extend the employer’s duty of care to “absolute and unremitting solicitude for an employee’s mental health” even in relation to stressful events.[92]

[92]Hegarty v Queensland Ambulance Service [2007] QCA 366

176In Woolworths Limited v Perrins,[93] the Queensland Court of Appeal considered whether stress caused to the plaintiff through the acts or omissions of work colleagues, was foreseeable.  Mr Perrins’ psychiatric injury resulted from a manager’s decision to exclude him on a number of occasions from a management training course for which he had been selected.  The court noted that the risk in question should not only be foreseeable, but reasonably so:

“… As Callinan J pointed out in Koehler on which side of the line a particular case falls – far-fetched or not – is not always easy to say.  At some level it could be said that any employee, if sufficiently vulnerable, might succumb to psychiatric injury or illness if disappointed in their ambition or in the performance of their colleague’s duties when it impacts adversely on their hopes and ambitions.  In that sense it is hardly far-fetched or fanciful to say that such decompensation might occur.  But the reasoning and outcome in Koehler provides authority for the proposition that an employer need not guard against risks that are so generally expressed.

…

My view is that disappointed ambition is a commonplace in the employment situation, sometimes resulting from events far more unfair than a colleague belatedly but accurately carrying out her duty, and sometimes disappointments occur on many more occasions than the two here, but psychiatric decompensation as a result is not commonplace.  In my judgment very few people would react and suffer psychiatrically as did this Mr Perrins if placed in his situation.”[94]

[93][2015] QCA 207

[94]Perrins (supra) at paragraphs [68] and [73]

177Even accepting there was some criticism of Mr Borg, in the presence of his peers, about poor sales figures, I am not satisfied the psychiatric injury he claims to have suffered as a result was foreseeable.  As a consequence, there was no breach of the employer’s duty.  Mr Borg’s claim fails.

The allegations concerning Ms Knight and Mr Pell

178Mr Borg also alleges he was further bullied, humiliated and intimidated in relation to the work performance of a member of his sales team, Ms Belinda Knight.  This occurred when he was in the role of Team Leader.  He says it became apparent she was regularly absent from her duties, and failed to go to see customers to promote the company’s products.  He said that despite her assurances she had visited customers, his enquiries revealed that she had not.  Because of her poor performance, his sales team was not able to meet its targets.  He says he approached Mr Pell to complain about these matters only to find he was making excuses for her conduct and was not prepared to hear of his concerns.  At the staff Christmas party in 2009, when Mr Pell was affected by alcohol, he rather crudely admitted that he was having an affair with Ms Knight.  He said this was well known at Stuart Alexander.  He said he began to worry because there was no way of him being able to discipline Ms Knight nor to improve her performance.  As a result, he “demoted” himself as Team Leader and returned to the position of Territory Manager.

179Mr Pell denied absolutely any affair with Ms Knight or making any admissions to that effect, and denied being drunk at the Christmas party.  He said that Mr Borg never raised any issues about the performance of Ms Knight with him.  He said he conducted performance reviews in relation to Ms Knight and said there were no major issues with her performance in 2009.  The first Mr Pell heard of the allegations was when Mr Younis came to Melbourne to tell him that there was a rumour that he was having an affair with Ms Knight and asked him whether there was any truth to the matter.  He said he did not mention it to Ms Knight, as to his mind it did not have any substance.

180Mr Younis gave evidence that he was approached by Ms Burns from the HR Department, who informed him of the rumour and asked him to investigate it. Several days later, he flew to Melbourne and met with Mr Pell.  He said Mr Pell emphatically denied the rumour and that Mr Pell thought it was “sour grapes” on the part of Mr Borg after stepping down from the position of Team Leader. He said he was at the 2009 Christmas party and did not recall Mr Pell mentioning the affair.  According to the evidence of Ms Scott Paul, she said that around this time, she spoke to Mr Borg about the breakdown of his marital relationship.  He spoke of a fear of losing custody of his children.  She offered the company’s assistance in anything it could do.  She said the company would support him through a stressful time.

181Mr Borg was referred to Dr Stella Kwong, psychiatrist, who he saw in 2011, and then regularly in 2012 and 2013.  According to her report,[95] she diagnosed Mr Borg as suffering an Adjustment Disorder with Depression secondary to his physical injury at work on 28 February 2011.  She also received a history that he had been humiliated by his boss in the past.  He said that with his injury, his marriage had gone downhill.

[95]CB 114-116

182According to the various reports of Dr Irani, Mr Borg became very depressed, stressed and psychologically disturbed as a result of his lower back injury, and this had “taken a toll” on his marriage.

183Mr Borg complained to Associate Professor Paoletti of a number of workplace problems, including unreachable sales targets, questioning by the State Manager at a meeting, issues with a female team member who was having an affair with the State Manager and a reaction to his spinal injury.  She diagnosed a Major Depressive Disorder, citing employment as a significant contributing factor.

184Dr Timothy Entwisle, psychiatrist, said Mr Borg was suffering a major depressive illness.  Dr Alan Jager, psychiatrist, said he was suffering a Chronic Major Depressive Disorder with Anxiety which arose partly as a consequence of his physical injury and the various workplace incidents.

185From these various reports, I conclude Mr Borg is suffering a significant psychiatric illness, probably in the nature of a Major Depressive Disorder.  I accept that this has arisen, in significant part, as a consequence of his physical spinal injury, and the pain and restrictions that has imposed.  I further accept that the breakdown of his marriage has played a role in the onset and continuance of the disorder, in particular because of his complaints to Ms Scott Paul of the marriage difficulties he was undergoing when he confided in her.  I further accept it is probable his perception of his treatment by Mr Pell at the sales meeting has played a role.

186However, I do not accept the evidence of Mr Borg of what occurred at the Christmas party in 2009.  I accept the evidence of Mr Pell that he was not drunk and made no mention of any relationship with Ms Knight.  I accept his emphatic denial of any such relationship.  I further accept his evidence that while there may have been relatively minor issues from time to time with Ms Knight’s sales performance, there was no significant issue such as required his intervention.  I accept his evidence that Mr Borg, while generally able and competent, did have some difficulties in the position as Team Leader and that he struggled to give the direction needed.[96]  I am of the view that it was these difficulties which led him to become dissatisfied with that role, and return to sales as Territory Manager.  Whatever his perceptions as to the role played by Mr Pell in that process, they were untrue or unfounded.

[96]CB 59 at paragraph [17]; CB 68 at paragraph [16]

187There is no basis upon which to allege there was any breach of duty by Mr Pell, or others at Stuart Alexander, in relation to this allegation.  The plaintiff’s claim in that regard fails.

188Even if I am wrong in accepting the evidence of Mr Pell, and he did disclose to Mr Borg the affair with Ms Knight and failed to support Mr Borg in his concerns about Ms Knight’s performance, then, for the reasons referred to above, I am not satisfied that a significant psychological decompensation leading to a Major Depressive Disorder was reasonably foreseeable in the circumstances.

Conclusions

189For the reasons given, I am not satisfied there was any injury suffered by Mr Borg over the course of his employment arising out of his sales duties. I am further not satisfied that he lifted and stacked pallets in a storage shed which gave rise to any injury. In any event, I find there was no breach of duty of care, or of the Regulations in either event. While I accept Mr Borg suffered an injury to his lower spine in the twisting incident of February 2011, I am not satisfied that occurred as a result of any breach of duty by Stuart Alexander.

190While I accept Mr Borg suffered a significant psychological injury, which has required treatment and medication, I am not satisfied that injury was foreseeable to his employer, or that it arose out of any breach of duty.

191In those circumstances, the plaintiff’s claim fails.  I shall hear from the parties as to costs.

192There is one further matter.  The solicitor for the defendant, Mr Ben Russell, to my observations, provided all reasonable assistance to Mr Borg in the period leading up to this trial and in the course of the trial, including providing documents, compiling the court books and answering queries.  It is no easy matter to on the one hand ensure the interests of one’s client are protected and on the other, to assist a litigant in person to enable a court to understand that litigant’s case.  The Court is indebted to Mr Russell for his assistance.

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