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…
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- Case
- [2013] VSCA 122
- Decision Date
CaseChat Overview and Summary
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.
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