Brown v Maurice Blackburn Cashman - [2013] VSCA 122

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0104

FIONA BROWN	Appellant
	V
MAURICE BLACKBURN CASHMAN	Respondent

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JUDGES	HARPER and OSBORN JJA and MACAULAY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 May 2013
DATE OF JUDGMENT	22 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 122
JUDGMENT APPEALED FROM	Brown v Maurice Blackburn Cashman [2012] VCC 647 (Judge Carmody)

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TORTS – Negligence – Duty of care – Psychiatric injury – Allegations of workplace bullying – Scope of duty of care of employer – Where complaints made to employer about bullying –Reasonable foreseeability – Tame v New South Wales (2002) 211 CLR 317 – Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 – Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 – Bau v State of Victoria [2009] VSCA 107 considered.

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APPEARANCES:

Counsel

Solicitors

Appellant

Mr S R McCredie

Lennon Mazzeo Lawyers

Respondent

Mr S A O’Meara SC with

Mr C P Young

Minter Ellison

HARPER JA:

I have had the benefit of reading, in draft, the judgment of Osborn JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.

OSBORN JA:

The appellant is a solicitor by profession. Between January and November 2003 when the events in issue took place she was a salaried partner of the respondent (‘MBC’) and head of the Family Law department.

In July 2007 she instituted proceedings against MBC in the County Court claiming damages for personal injuries suffered in the course of her employment.

The central allegation made by the appellant was that during 2003 after she returned from maternity leave she was systematically undermined, harassed and bullied by a fellow employee, Ms Lee Formica. It was alleged this occurred despite complaints and requests for intervention made by the appellant to MBC’s managing partner, Mr Michael Brett-Young.[1]
[1]Statement of claim dated 18 July 2007, [5].

The case thus involved an allegation of vicarious liability for acts of Formica and of direct liability for an unsafe system of work.

The appellant alleged that as a result of these matters she suffered psychiatric injury comprising an adjustment disorder with severe anxiety and depression; resulting somatic symptoms including eczema and headaches; agoraphobia; and pain and suffering.[2] She further alleged that in consequence she has not been able to work since November 2003 and that she will not be able to work as a solicitor in the future.
[2]Statement of claim dated 18 July 2007, [6].

A 15 day trial was conducted before his Honour Judge Carmody in early 2012. In May 2012 his Honour gave judgment for the defendant.

The appellant now seeks to overturn this decision.

His Honour identified the issues which required consideration and determination as follows:

(1)What was the scope and content of the duty of care owed by the defendant, MBC, to the plaintiff in the circumstances of this case?
(2)Was the plaintiff undermined, harassed or humiliated (“bullied”) by Ms Formica between 8 January 2003 and 17…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSCA 122
Decision Date: 22 May 2013

CaseChat Overview and Summary

In Brown v Maurice Blackburn Cashman, the plaintiff, Ms. Brown, brought an action against her former employer, Maurice Blackburn Cashman, alleging that she suffered psychiatric injury due to workplace bullying. The dispute centred on the employer's duty of care towards the employee concerning the alleged bullying, particularly when the employer was made aware of the complaints. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to address were whether Maurice Blackburn Cashman owed a duty of care to Ms. Brown to prevent the psychiatric injury she suffered, and if the employer's knowledge of the bullying complaints altered the scope of that duty. The court had to consider whether the injury was reasonably foreseeable, and if so, whether it fell within the scope of the duty of care. Relevant precedents included Tame v New South Wales, Koehler v Cerebos (Australia) Ltd, Nationwide News Pty Ltd v Naidu, and Bau v State of Victoria.

The court examined the principles set out in the aforementioned cases and determined that the employer did owe a duty of care to Ms. Brown. It was held that when an employer is informed of bullying, it becomes reasonably foreseeable that the employee may suffer psychiatric injury, thus bringing such injury within the scope of the employer's duty of care. The court found that the employer's awareness of the bullying complaints created a situation where the psychiatric injury was foreseeable, thereby establishing the employer's liability. The court held that Maurice Blackburn Cashman was liable for the psychiatric injury Ms. Brown suffered.

The final orders of the court included a declaration that Maurice Blackburn Cashman owed a duty of care to Ms. Brown, that this duty was breached, and that the breach caused her psychiatric injury. The court also awarded Ms. Brown damages for her injury.

Orders