Brown v Maurice Blackburn Cashman

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 November 2003?
(3)Was it reasonably foreseeable that the plaintiff would suffer psychiatric injury in the circumstances of this case?
(4)Did the defendant, MBC, breach its duty of care to the plaintiff in the circumstances of this case?
(5)Did the breach of the duty of care by the defendant, MBC, cause a psychiatric injury to the plaintiff as alleged?
(6)If “yes” to the above issues, what is the appropriate assessment of damages for the pain and suffering and pecuniary loss damages suffered by the plaintiff as a result of the psychiatric injury?[3]

[3]Brown v Maurice Blackburn Cashman [2012] VCC 647 (‘Judgment’), [16].

He ultimately concluded that:

(a) the appellant was not bullied;

(b) it was not reasonably foreseeable that the appellant might suffer psychiatric injury as a result of stress at work until late October/early November 2003; and

(c) MBC did not breach its duty of care to the appellant in all the circumstances of the case.

The notice of appeal contains 22 discursive grounds but the written outline of submissions filed on behalf of the appellant usefully groups these into five principal allegations. In summary the appellant submits that:

(a) the trial judge misdirected himself with respect to the threshold concept of duty of care;

(b) the trial judge erred in concluding that it was not reasonably foreseeable the appellant would suffer psychiatric injury as a result of the performance of her duties;

(c) the trial judge was wrong to find that the appellant was not subjected to systematic harassment;

(d) the trial judge should have found the appellant’s continuing psychiatric condition at trial was caused by her employer’s negligence; and

(e) the trial judge made material errors in his findings of fact.

For the reasons set out below, I am not persuaded that the trial judge did other than correctly identify the relevant principles of law and articulate them in a manner responsive to the way the case was put to him. Further, I am not persuaded that his critical conclusions of fact were either against the weight of the evidence or materially flawed.

The concept of bullying

At trial the appellant’s counsel submitted that the appropriate definition of bullying was set out in a WorkSafe Victoria guidance note on Prevention of Bullying and Violence at Work dated February 2003. The relevant definition is as follows:

Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.
Within this definition:
‘Unreasonable behaviour’ means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.
‘Behaviour’ includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.
‘Risk to health and safety’ includes a risk to the mental or physical health of the employee.[4]

[4]Ibid [32].

As his Honour noted this definition of workplace bullying does not have legislative force but he accepted that it was a reasonable working definition of workplace bullying against which to objectively analyse the allegations made with respect to Formica’s behaviour.[5]
[5]Ibid [33].

The definition raised two threshold issues:

(a) was there unreasonable behaviour directed towards the appellant, ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten the appellant; and

(b) if there was, did it occur repeatedly?

His Honour’s judgment addressed these issues and then analysed the course of complaints allegedly made by the appellant to MBC together with the history of responses made by MBC. I shall set out the sequence of events, complaints and responses as they were alleged to have occurred, together with his Honour’s findings in respect of them and my own conclusions with respect to such findings.

Background

Because the case arises at heart out of the ongoing working relationship between the appellant, Formica and Brett-Young, it is desirable to set out some background to the events forming the subject of the claim.

The appellant was born on 18 February 1968 and was 35 at the time of the critical events in 2003. She is a graduate in Law and Science from the University of Tasmania and majored in Psychology in her Science degree.

The appellant graduated when she was 23 and then completed the Leo Cussen course in order to be admitted to practice as a solicitor in Victoria.

During the Leo Cussen course the appellant met Formica, who was then a solicitor at Wisewoulds, a law firm. The appellant and Formica became friends and remained friends until 2003.

The appellant was employed by MBC in 1998. She was made a salaried partner in July 1999. She had become an accredited Family Law Specialist in 1998 and in turn was appointed the head of the Family Law department at MBC. In that capacity she recruited Formica as a consultant in 2000. Ms Formica was married with a child and initially worked three days per week.

The appellant married in October 2001. She became pregnant in 2002 and worked through to 20 December 2002. She had her child on 22 December 2002, a date earlier than she had anticipated.

At the time the appellant took maternity leave the Family Law department included Formica, another full-time solicitor Mr Forster, a junior solicitor Ms Presnell (Gregory), the appellant’s personal assistant Ms Watts, and Formica’s personal assistant Ms Osborne. The appellant and Formica worked in adjacent offices and would lunch together regularly up to three times per week. There was contested evidence of one episode of friction between the appellant and Formica in 2002. The appellant said she spoke with Formica in October 2002 in relation to concerns that Osborne had raised with the appellant about being overburdened with work. The appellant said that Formica ‘attacked me on the issue and said that I wasn’t giving her support in the office’. Formica denied that she spoke angrily and denied that she said that the appellant did not give her enough support. Putting this incident to one side, the evidence as a whole supported the conclusion that prior to her maternity leave the relationship between the appellant and Formica was good.

When the appellant went on maternity leave her files were allocated between the remaining three solicitors. Formica was given 10 of the appellant’s files to add to her own. It was also arranged that Formica would work full-time (rather than three days a week) and act as head of the Family Law department. It had been the appellant’s intention to return to work after 20 December to put file notes on each of her files but due to the early arrival of her child she did not do so.

January 2003

Formica visited the appellant at home in early January. The appellant gave evidence that she told Formica that she had not been able to complete the file notes and that she would email information on the more important ones. Formica denied that the appellant told her she would email information on the more important files.

On 6 January 2003 the appellant sent limited notes relating to four of the files by email to Formica with a promise to do more the next day.

In response Formica sent an email to the appellant dated 8 January 2003:

Sent: Wednesday, 8 January 2003 1:59 PM
Subject: hello
Hi fi,
hope all is well and you’re getting enough sleep and enjoying your baby. Got your recent email. We’ve had a chat and we are not going to discuss files with you. This is a new chapter in your life and you don’t need the grind of work to fill your otherwise busy days. We’ll keep you informed of stuff as and when and if you need to know – not that you need to know that much.
But your new role is a mum [sic] and you should embrace it. You’ll be back at work in no time so .... Put it into perspective and enjoy that little bundle while you’ve got the chance. Work will always be here. So don’t fret and remember you’re on maternity leave and you’ll be stressing yourself out soon enough with work, motherhood and a thousand other things you’ll do as a working mother.
Sorry for the strong words but really I've been there and I know how hard it is for us “career women in our 30’s with new baby” to sever our identity from work but do it NOW. Eloise will only be this tiny for a very short while. My baby is 4 today so I can vouch for how fast time flies.

We are all frantic but coping. Will chat with you soon – about your new mother’s group and other domestic things.
luv,
Lee xx
Lee Formica
Accredited Family Law Specialist[6]

[6]Ibid [35].

In her evidence the appellant acknowledged this email:

I thought it was a very considerate email from Lee and very understanding of me being a new mum and supportive and it gave me a lot of comfort.[7]

[7]Ibid [36].

The appellant also communicated with her personal assistant, Watts, on a number of occasions by email after 8 January 2003.

In her evidence Formica was asked whether or not she thought it appropriate for notes to be left on the files that were being taken over by another member of the department.

A:       The usual practice is that you do detailed file notes. If it's a property case you advise whether there are outstanding valuation issues. You - - -
Q:       Without going into detail, is it something usual and expected as appropriate practice?
A:       Okay, you give files - yes. And also, what we also do is sometimes physical hand over of files and introduction to the client.
Q:       Having realised that there was no file notes, how did that affect the extent of your workload when you were dealing with Fiona Brown's files?
A:       I had to do a lot of reading. I had to piece it together and it added to my time.
Q:       On one occasion did something happen when you were working late and you had contact with Michael Brett-Young?
A:       Yes. This was now 20 January, some two and a half weeks after we'd got back to work, and I was working back late and Mike came in and he said, ‘What are you doing here?’ Just jokingly - not jokingly, but in a light manner, and I said, ‘I'm just trying to get on top of some files.’ And just in passing and certainly just without any intention of getting Fiona into trouble, I simply said, ‘Fiona seems to have not left many file notes.’

Q: Are you able to remember how late this was?
Q: It would have been after 7.[8]

[8]Ibid [38].

As a result of the discussion between Formica and Brett-Young, Brett-Young contacted the appellant and asked her to come in and prepare notes on the files. Brett-Young’s evidence was that he did not want the files to go out of the office and thus it was necessary for the appellant to come in and do the notes. The appellant’s evidence was that she told Brett-Young that she was really unhappy at having to come in.

On 21 January 2003 Formica sent an email to the appellant.

Sent: Tuesday, 21 January 2003 9:11 AM
Subject: greetings
Hi Fee
have spoken to Kate and the new batteries in the Dictaphone are raring to go for those file notes. I think you’ll need about 2 -3 hours to do it properly. Kate has been great – she has gone thru your filing cabinet and done the best she could to create lists of files for each of us, a short description of the matter (as best she could) and to diarise hearing dates.
You can imagine what a waste of time and bewildering it has been not to know precisely what we were acquiring from you and trying to assess whether we should take on new clients or not AND deal with all the new super stuff on your own files etc. What happened to doing a few file notes a day from 1 December and distributing them before you went on maternity leave!!!!!
You’ll need to give us a thorough break down of each file – even an understanding if client is easy, demanding, hard work etc. I need to know your views as child rep [sic] on child rep cases. You know the usual thing. I think you need to do ALL files not just what is current. We’re already had 2 ‘sleepers’ ring up for help. Obviously if you’re not back until late April/May we can’t rely on things remaining dormant. And anyway it’s murphy’s law that applies ....
I really don’t think it’s going to work if Tony and Eloise come in for hours. Perhaps you should fee [sic] her, come in, dictate your file notes and then arrange for Tony to drop in later so we can coo over Eloise for a short time. We really are very busy. You won’t have much time with Kate as Mart is still away and will be away as well tomorrow.

Things are chugging along at a fast pace.
See you then.
Lee xx
Lee Formica
Accredited Family Law Specialist

The appellant gave evidence that she was pretty shocked when she received the email and that the email was ‘pretty hard and cold … especially dictating what I had to do with my four week old child, feed her, leave her at home, you know, that sort of thing, and yeah I was pretty upset by it.’

The initial allegations of bullying are as follows:

(1) Allegations set out in paragraph 5 (a)(i)
‘Formica gave initial support to the plaintiff having a complete break from her work on 8/1/2003 and then attempted to isolate her from her work colleagues and subsequently undermine her and interfere with her maternity leave by complaining unjustifiably to Brett-Young on or about 20 January 2003 that the plaintiff needed to attend at her workplace to put her files in order.’
(2) Allegations set out in paragraph 5 (a)(ii)
‘Formica unjustifiably criticised the plaintiff by email on 21 January 2003 for the absence of file notes and inferentially treated the plaintiff as if she, Formica, was a disappointed superior and not as she then was, as subordinate and a friend.’

His Honour rejected the initial allegations of undermining, unjustifiable complaints and unjustifiable criticism by Formica and found as follows:

The plaintiff also alleged that Ms Formica was instructing the staff, Kate Watts and Georgina Presnell (Gregory) not to contact the plaintiff. If that in fact occurred, the logical conclusion is that, consistent with Formica’s earlier emails, she was seeking to preserve and protect the plaintiff’s maternity leave from being interrupted by work matters. I find that the correspondence and actions of Ms Formica at this time did not constitute any undermining of the plaintiff.
The allegation that the email of 21 January 2003 indicates that Ms Formica was treating the plaintiff from a position of ‘a disappointed superior’ is not correct. The plain reading of that email is simply Ms Formica giving practical advice about what was required and how it was to be achieved.[9]

[9]Ibid [42]-[43].

I agree that the email on 21 January was not shown to contain unjustifiable criticism and that the weight of the evidence did not justify a finding of ‘undermining’. The evidence simply shows that some friction arose in a situation where the absence of file notes caused stress to Formica and the making of file notes caused stress to the appellant. The request for file notes was not shown to be unreasonable. Indeed, the evidence supported the contrary view.

His Honour further concluded:

I find that Michael Brett-Young contacted the plaintiff on or about 20 January 2003 and requested that she attend the offices of MBC to make file notes for the family law files that were handed over during the course of her maternity leave. I find that it was Michael Brett-Young’s decision to request that the plaintiff attend at the offices of MBC in order to make those notes. I accept that this was a reasonable direction for the managing partner of a law firm to make to an employee who had gone on maternity leave without making the notes for the transfer of the files to another solicitor, in this case, Ms Formica.[10]

This finding accorded with the weight of the evidence.

[10]Ibid [175].

On 28 January 2003 the appellant attended the offices of MBC and completed file notes on her files. The appellant’s evidence was that she spoke to Brett-Young about concerns that Presnell and Watts were not being properly supervised by Formica in respect of work on the appellant’s files. Brett-Young said he would keep an eye on this.

In paragraph 5(a)(iii) of the particulars of harassment pleaded by her, the appellant alleges:

Formica failed to properly supervise junior solicitors requiring the plaintiff to give urgent assistance through her maternity leave.[11]

[11]Statement of claim dated 18 July 2007.

The appellant had asked Watts and Presnell to call her if they needed assistance. Watts confirmed she had nevertheless been instructed not to contact the appellant whilst she was on maternity leave. Watts stated she contacted the appellant nearly every second day mainly to talk about the appellant’s baby but sometimes to do with work. The trial judge found that these contacts with the appellant by her support staff were mainly invited by the appellant herself and were not indicative of a failure to supervise by Formica. He also found that although Formica was very busy she in fact supervised the staff within the department. The evidence as a whole supported these conclusions.

The appellant next alleged in paragraph 5(a)(iv) of the particulars of harassment:

Formica’s relationship with the plaintiff changed from a friend and colleague to unfriendly colleague.[12]

[12]Statement of claim dated 18 July 2007.

His Honour found this to be a perception held by the appellant and that there was no evidence that this perception was properly based in fact.

There was in any event a significant gap in time after late January before any further friction between the parties. The appellant alleged that on 26 March 2003 Brett-Young refused to meet with her to discuss her concerns relating to Formica.[13] The evidence showed that the appellant arranged to come into the office of MBC to show off her newborn baby and hoped to catch up with Brett-Young. He responded to a request to do so by advising that he would be in Sydney on the day in question as part of his duties as a managing partner. As the trial judge observed, the appellant’s emails did not express any concern with respect to Formica. The critical email was as follows:

(omitting formal parts)
Hi Michael
Just a quick note to say I’m coming into the office tomorrow (Thursday) and bringing the chubba bubba to have lunch with the family dept at legals downstairs. I hope you will be around to say Hi! I will tee up another time to see you soon to talk about more important stuff to do with me without Eloise with me. Would you prefer I come into the office or we could meet for a coffee in Albert Park some day or a weekend day when Tony is home? I’m planning on coming back to work on Monday 5 May. I hope you are not too strung out……………!
Fi

[13]Statement of claim dated 18 July 2007, particulars of complaint, [5](c).

His Honour concluded[14] that Brett-Young was simply not advised at this time by the appellant of concerns about Formica. In written submission the appellant contends that the critical question was whether the email disclosed anything that a reasonable employer might regard as requiring a follow-up to avoid the possibility of mental injury. The short answer to this submission is that the email did not disclose anything of this nature nor disclose any element of continuing stress.
[14]Judgment, [177].

The appellant also alleged in her pleading concerning complaints[15] that the appellant requested a meeting with Brett-Young on or about 10 April 2003 to discuss concerns regarding Formica. As his Honour concluded, the evidence did not establish that a complaint was made to Brett-Young about Formica. The appellant said no more on the telephone than ‘I’d like to come and see you before I come back and talk about the department, how it’s been going and also about what’s happening with me when I come back.’
[15]Statement of claim dated 18 July 2007, particulars of harassment, [5](d).

Once again, there was nothing in this communication suggestive of stress or a risk of mental injury.

On 29 April 2003 the appellant met Brett-Young for lunch and was told by him among other things that Formica was to be made a salaried partner from 1 July 2003 and that the firm wished to market its Family Law department to the clients of large commercial law firms that did not themselves engage in family law.

The appellant gave evidence that she was pretty surprised to be told of Formica’s appointment and felt that she could not really discuss with Brett-Young the concerns that she had had during maternity leave because it was obvious Formica was impressing the partners sufficiently for Brett-Young to say what he did.

It is apparent once again that the appellant did not communicate to her employer any concerns about her relationship with Formica.

The appellant also gave evidence of discussion with Brett-Young about the arrangements she proposed for her own return to work, which involved working in the office three or four days a week and being online from home on the other days. She had family childcare arrangements and was ‘flexible’. Again, there is no evidence demonstrating any indication of psychiatric vulnerability on the appellant’s part.

The appellant’s particulars of complaint allege:

At a meeting with Brett-Young on 29.4.03 he foreclosed discussion of the plaintiff’s concerns regarding Formica by advising she had been made a salaried partner of the defendant.[16]

[16]At [5](e).

The evidence did not establish any deliberate foreclosing on Brett-Young’s part.

After lunch on 29 April 2003 the appellant spoke to Formica and congratulated her. The appellant’s evidence was that Formica thanked her and said that she, Formica, would continue to look after the appellant’s personal files for a couple of weeks on the appellant’s return. Formica’s evidence was that she said she would help as much as she could to ease the appellant back but did not suggest she would work on Tuesday which was her day off. Despite the difference of detail in the accounts, there is no suggestion from either of them that the exchange was other than cordial.

The return to work from maternity leave

The appellant was expected to return to work on 5 May 2003. One of her matters was listed for an Order 24 hearing at Dandenong Magistrates’ Court on Tuesday 6 May. At that time, Formica was not working on Tuesday. On 30 April 2003 Watts emailed the appellant to advise her that the matter was fixed for hearing on Tuesday and that Formica suggested the appellant could attend to the case. The appellant spoke to Watts who emailed Formica that the appellant was hoping to attend the hearing, but asked for some time with Formica on Monday to discuss the file in detail and also asked that Formica deal with all she could before the weekend.

Formica responded at 6:28 pm:

(omitting formal parts)
Kate I think you know what my timetable is like at the moment and my commitments for Thursday and Friday.
If Fiona can do the Order 24 conf on Tuesday you can courier the file to her tomorrow ie Thursday to prepare for next week. I am NOT in a position to prepare this for her and will not be doing anything further on it. I shall return the file to you. It needs a lot of attention before Monday which Fiona can do from home. If she doesn’t do any work on it there will be a costs order made next week.[17]

[17]Judgment, [55].

She followed that up shortly afterwards with a further email stating:

(omitting formal parts)
Am not happy – or did I not make that clear?
Am going home to do what I love doing most – more f…ing work for this place.
See you tomorrow.[18]

[18]Ibid [56].

Although she expected the substance of the emails to be passed on to the appellant, Formica’s evidence was that she did not expect the actual emails to be forwarded to the appellant. Whatever her intention, this is what occurred.

On the following day, the appellant emailed Formica setting out domestic difficulties she faced and concluded by saying she was ‘disappointed’ in Formica. It was then arranged that another solicitor would prepare the Dandenong file. At 11:58 am on 1 May 2003 Formica sent an email to the appellant:

(omitting formal parts)
well welcome back. This is what I have had to confront for over 4 months. The dept is in an appalling state and my level of disappointment in you and he [sic] way you left your files and your general attitude before your departure on maternity leave is extremely deep. I also have a family and finally you know what it is like to juggle. I have not forgotten your words when I asked why we did not try to work in a team and you shrugged your shoulders and told me it was ‘the nature of family law.’ As I said to myself then – what goes round comes round. It has come round for you. I am still waiting for you to thank me for the extremely long hours, devotion and loyalty I have demonstrated to you and this dept in extremely trying circumstances. I have not heard a whisper from you.
Rather than organising a special dinner for Kate and Georgie to thank them for ‘all their had work’ if you had any modicum of understanding of what I and Martine have done you could have extended some courtesy and thanked us as well. Frankly without me this dept would have sunk in the last 4 months. Don’t ever forget that – and don’t you ever dare say you’re disappointed in me. Get real about what’s been happening here.
Fundamentally we are friends and have been for a very long time. When you get back we can have lunch and patch up our differences. I do not hold grudges and I'm happy to talk things through with you. We are a good team together despite what others in this dept have tried to create in the last few months. I take it Kate did not send you the subsequent email I forwarded her after that one. Did she?
You might also care to know I sent that first email to Kate at 6.30 last night. This was after another gruelling day in a 4 day trial with silk. I worked ANZAC day, conferred for 4 hours on Sunday as well as attending to the other 100 million things I do for the people in this dept including you. Oh and by the way I have 2 children who need me as well and are missing me terribly. My usual day is 8am to 7.30pm in the office 5 days a week, one or 2 evenings of work at home and part of the weekend working. I have a family who are missing me heaps.
So get off my back. I'm sorry you’re stressed but you’ll have to get used to managing kids and work – with or without support – Like all other working mothers. This is the real world. You’re the one who said you were more than happy to do things from home – or was that just limited to ringing Kate every day for who knows what purposes. I am unable to do [Client’s name]. The file is with Kate.
Don’t ever send me an email like that again. I am totally offended.[19]

[19]Ibid [61].

Formica explained the emails sent at the end of this week on the basis that she was very stressed but conceded that they were inconsiderate and that she regretted sending them.

The appellant’s evidence was that she was shocked by the terms of the email of 1 May 2003 and developed chest pains, a heart racing sensation and cried a lot. Later that day Formica forwarded a copy of the email to Brett-Young and sought to speak to him. In cross-examination, Formica said she was ashamed and regretted sending the email and agreed parts of it were untrue and other parts were exaggerated. She agreed parts were expressions of very strong emotion and anger. Quite obviously the email was a cry for help.

The following day Formica phoned the appellant in order to apologise. When the appellant did not answer she left a phone message indicating that she was apologising and that she wanted to catch up over the weekend. The appellant agreed that the tenor of the message was that Formica wanted to sort it out as between friends (as the email of 1 May 2003 itself had foreshadowed in the third paragraph).

The appellant alleges:

(v)Formica created a crisis in respect of one of the plaintiff’s files (that Formica had been entrusted with during the plaintiff’s leave) for her second day back from maternity leave, requiring the plaintiff to take action during her maternity leave to prevent a disaster;
(vi)Formica by 2 emails of 1.5.03 unjustifiably abused the plaintiff to manufacture further tension and hostility for the plaintiff upon her return from maternity leave on 5.5.03.[20]

[20]Statement of claim dated 18 July 2007, particulars of harassment, [5](a).

Quite correctly in my view, his Honour did not accept that the relevant emails were sent by Formica with the intention of creating a crisis.

I conclude from this exchange of emails and evidence given by the two protagonists, the plaintiff and Ms Formica, that both of them were under considerable pressure in their lives, both personal and professional. Each of them had, by the use of email, sent regrettable messages to one another. I do not accept that a reasonable person would classify these as being communications which would victimise, humiliate, undermine or threaten the recipient, in this case the plaintiff.[21]

[21]Judgment, [68].

In so finding, his Honour did not characterise the emails as ‘reasonable’ as the appellant submits but he rejected the contention that they amounted to bullying in terms of the definition that had been put to him. In my view he was correct to do so.

The appellant emphasises that Formica’s email to Watts on 30 April 2003 included a statement that if the appellant did not do any work there would be a costs order made the following week. His Honour characterised this statement as one of fact and not as one of intimidation. Again, I am of the view he was correct to do so.

On returning to work the appellant contacted another partner of MBC who spoke to Brett-Young about her. In turn, the evidence of both the appellant and Brett-Young was that he was told about the appellant’s concerns relating to the emails. Brett-Young told the appellant that Formica was stressed and also told her to sort out her differences with Formica.

In consequence, the appellant took Formica to lunch on Wednesday 6 May 2003. Formica outlined concerns she had had during the period of the appellant’s maternity leave. The appellant expressed her concerns that Formica had not shown enough care for her. As his Honour concluded, in effect the two women decided to bury their differences and get on with their lives and work. The appellant described their position as being more wary of each other and not as close as it had been in the past. Nevertheless there was no further issue between them until the end of June.

The fact that the appellant and Formica were able to resolve their differences following the exchange of emails which accompanied the appellant’s return to work, counts strongly against any argument that this episode provided a basis for MBC to infer that the appellant was at risk of psychiatric injury.

On 9 May 2003, a few days after the lunch referred to above and in the immediate aftermath of the emails which are now complained of, the appellant prepared a report to the partners of MBC concerning the Family Law department. It stated in part:

During my absence on leave, the department was frantically busy. Lee agreed to increase her working days to full time (from three days) during my leave period. However, Lee’s own practice took on a life of its own in my absence, it became very difficult for her to properly supervise Georgina and oversee my practice. Everyone has put in a tremendous effort. With my return, the pressure has been eased significantly and the running of the department should be back on track.
The costs rendered for me at the end of April 2003 was for work carried out by me in December 2002. My budget as at December 2002 was $184,998 and I had billed $282,212 by the end of April.
I have every confidence that the Family Law Department will continue to grow and develop and with Lee and I focussing on targeting marketing over the coming year, there is no doubt that we will be one of the leading family law practices in Melbourne.

His Honour found that the report read as a whole and in particular the passage quoted above presented the partners at MBC, including the managing partner, with a very positive report concerning the Family Law department.[22] It is inconsistent with the proposition that the appellant was showing signs of stress or difficulty in managing her role at this time. It expressly acknowledged the particular stress that Formica had been under and contemplated that the appellant would continue to work productively with Formica.
[22]Judgment, [188].

The appellant next alleges as follows:

By email on 27 June 2003, Formica unjustifiably accused the plaintiff of traducing her by wrongly alleging (from Formica’s point of view) that a meeting had been cancelled because Formica had an unexpected family commitment.[23]

[23]Statement of claim dated 18 July 2007, particulars of harassment, [5](c).

Some seven weeks after the events in early May and the apparent reconciliation of the appellant and Formica, a meeting was proposed for the Family Law department of MBC on 26 June 2003. Late that day the appellant advised the members of the department that the meeting was cancelled because Formica had to go home to attend one of her children. On the following day Formica sent the appellant an email:

(omitting formal parts)
Hey the meeting wasn’t cancelled Thursday PM because of me or Natalie – it was never going to take place you all had to go to a seminar. It’s hard enough being a mum in the workplace without her being used as the reason why meetings don’t take place!

Later that day Formica sent a further email to the appellant in friendly terms referring to some events of the previous day and concluding ‘anyway not to worry have a nice weekend and speak during my hols as I’ve left you a few files.’

The appellant’s evidence was that she subsequently spoke with Formica and explained to her that the appellant had had no intention of being critical when she sent the email of the previous evening. Formica appeared to accept this. Formica’s evidence was:

… it was a misunderstanding and then the next day, I think, Fiona and I spoke and she explained that it wasn't - I had the day wrong and she clarified it and I said, ’Okay, thanks.’ It was just a nothing.

His Honour found that the exchange of emails and conversations concerning the failure to hold a meeting on 26 June 2003 did not involve bullying and that it was a ‘classic storm in a teacup’.[24] This finding accorded with the evidence.
[24]Judgment, [79].

The appellant next alleged:

Formica by sundry emails on 25 July 2003 unjustifiably belittled, humiliated and wrongly accused the plaintiff.

It can been seen this allegation relates to events a further month later. If one discounts the ‘storm in a teacup’ there are no allegations of bullying between the reconciliation in early May and late July.

The email evidence shows that on 25 July 2003 there was a dispute between Formica and the appellant about work allocation issues following the resignation of a staff member and about the preparation of costs agreements with government

departments. The emails included a statement by Formica:

If you go off unilaterally it’s just going to be ad hoc and cause other problems.

After the email exchange Formica invited the appellant for lunch with other staff members. Some time after they had lunched Formica came to the appellant’s office and gave her a bunch of flowers. The trial judge found that the appellant recognised this as an apology and accepted it as such.[25]
[25]Ibid [85].

Whilst there was obviously some friction on the day in question, the subject of the friction was the resolution of management issues within the department. The email exchange did not criticise the appellant more forcefully than the passage I have quoted above. The trial judge was correct to conclude that Formica did not bully the appellant.

August 2003

In early August an article was published about Formica in the MBC internal publication ‘Law Dog’ giving background information about her appointment as a salaried partner.

The appellant gave evidence that she objected to and was undermined by the following passage:

While Lee was a partner at Wisewoulds, Fiona Brown began work there as a young solicitor. When John Cain approached Lee to come to Maurice Blackburn Cashman, Lee felt it was not the right time for a move but recommended Fiona. Fiona has since built up the Family Law Department into the success that it is now. Lee later joined us too, initially as a consultant three days a week. Lee worked full-time while Fiona was on maternity leave. She now works four days a week in the office and puts out ‘bushfires‘ from home on the fifth day. Most of her work is property settlements and pre-nuptial and cohabitation agreements, with some children’s work as well.

The appellant objected to the article because in her view it made Formica appear more senior than the appellant and also, she believed, made it appear that Formica had given the appellant her job.

As the trial judge found, there was no implication in the relevant article which was objectively adverse to the appellant.

The statement of claim next alleges:

(f)In early or mid August 2003, Formica (who had been appointed a salaried partner on 1 July 2003) verbally threatened the plaintiff by alleging that the partners of MBC wanted to play one off against the other so that one of them would leave:
(g)From the date of the verbal threat in early mid-August 2003 onwards, Formica avoided talking with the plaintiff to the fullest extent possible despite their offices being adjacent:[26]

[26]Statement of claim dated 18 July 2007, particulars of harassment, [5](f) and (g).

In opening the case, senior counsel for the appellant characterised the conversation alleged about the attitude of the partners as amounting to a ‘declaration of war’. It was put that what was said amounted to a statement that ‘the war’s now on, it’s a fight to our career death, effectively’.

The appellant’s evidence was in part:

And she came to my office which I was surprised about because normally she didn't really come and speak to me and she just stood at the door and I was sitting there, you know, had been doing some work and she just said to me, ‘You know the partners are trying to play us off against each other so one of us will leave’. And I said, words to the effect of, you know, ‘What? What are you talking about?’ and she said, ‘Yes, it's true,’ and I said, ‘What makes you think that?’ and she said, words to the effect of, something she knew and she'd heard around the traps and that was pretty much all she said. She said, ‘I'm just making you aware of it’.

Subsequently the appellant said that Formica was trying to speak to her ‘… in a sort of friendly way as if she was letting me know something. But really it was letting me know that, you know, we were both fighting for our careers.’

As the trial judge observed, the appellant’s evidence was of her interpretation of what Formica said. Objectively the words attributed to Formica did not amount to a declaration of war. Indeed, the terms might be thought to invite a joint response.

The appellant also said she made a file note of the conversation but could not find it. As the trial judge noted, the evidence was that the appellant was a careful record keeper and this was the only relevant file note that she could not find.

Formica denied that in 2003 she ever formed the view that the partners were playing the appellant and herself off against each other. Further, she denied that she told the appellant that the partners were playing the two of them off against each other. Formica thought that on the occasion in question she said words to the effect ‘we’re working with some very blokey people and we have to work together as women to be credible in this firm.’ Such a statement was an invitation to a joint approach and in my view, although different from, is fundamentally consistent with the objective meaning of the words which according to the appellant were spoken by the appellant. Conversely, the appellant’s perception is contrary to that character.

The trial judge preferred the evidence of Formica on this issue. Even if he was wrong to do so then in my view the appellant’s own evidence did not make out the allegation that there was anything amounting to a declaration of war.

The appellant submits that her evidence should be accepted because Brett-Young agreed that at a meeting on 18 August 2003 the appellant made a complaint to him that Formica had said the partners were planning to set the two of them against each other.

Whilst the appellant’s complaint to Brett-Young might confirm part of the appellant’s impression of whatever Formica said to her, it does not overcome the direct conflict between her evidence and the evidence of Formica. Moreover, the general credibility of the appellant and Formica respectively was the subject of further findings based on the whole of the evidence to which I shall return and which present a further barrier to acceptance of the appellant’s version.

The allegation that Formica made a declaration of war was a critical element of the case put forward on behalf of the appellant. As the appellant’s written outline of submissions states, it was ‘central to the proof of the appellant’s case that Lee Formica had a motive for [the appellant’s] harassment, and also as a further instance of harassment …’. In my view, the trial judge was correct to conclude the evidence failed to adequately establish either the motive or actual harassment alleged.

I should add that the evidence of both the appellant and Brett-Young was that when she raised the suggestion the partners were playing the appellant and Formica off against each other, Brett-Young immediately said that this was not true. Brett-Young also agreed that the appellant might have said that her relationship with Formica was causing her stress but disagreed that he was told Formica was on a ‘power trip’ or that the appellant suggested at this meeting that an outside mediator be brought in.

There is no evidence that the partners were in fact intending to set the appellant and Formica off against each other in 2003. It is difficult to see that Brett-Young could have done more than authoritatively deny the suggestion even if the appellant’s account of what Formica said to her is correct or if, given her state of mind, the appellant had formed the perception of what Formica said to her which she asserts.

The appellant’s general practitioner, Dr Taylor, gave evidence that she attended on the appellant on 15 August 2003. In the course of the consultation Dr Taylor recommended that an outside mediator might assist in the resolution of work stress issues involving another colleague. The trial judge acknowledged this evidence but nevertheless preferred Brett-Young’s account of the conversation with the appellant on 18 August 2003. It was open to him to do so and in part his conclusion fell to be made having regard to his overall assessment of the credibility of the witness.

Moreover even if the trial judge was incorrect in rejecting this aspect of the appellant’s evidence as to her conversation with Brett-Young, such error would not overcome the deficiency in the evidence as to the prior declaration of war. Nor would it be of substantial practical significance because in the immediate aftermath of the meeting Brett-Young organised a further meeting between himself, the appellant and Formica to discuss the issues between the appellant and Formica. This meeting was not organised in a context of bullying or intimidation by Formica given the facts as the trial judge found them. The possibility of an outside mediator did not render the course of action taken by Brett-Young other than reasonable.

On 22 August 2003 the appellant sent Brett-Young an email seeking information concerning Formica’s ‘issues’ with her prior to any meeting. Her evidence was that there was no response from Brett-Young. Brett-Young could not recall whether or not he replied to the email. In any event, the meeting proposed by Brett-Young did not take place until the morning of 10 September 2003 because the appellant had two weeks’ leave in the intervening period.

The meeting of 10 September 2003

The appellant returned from leave on 9 September 2003. On the following day Brett-Young held the previously proposed meeting between himself, the appellant and Formica. A number of administrative issues were discussed. The appellant’s evidence was:

Q:Can you tell His Honour whether you recall any other matters being raised at the meeting?
A:Well we didn't talk, which I thought was going to be a prime topic, about the issue between Lee and I, and I started feeling a bit uncomfortable because it wasn't being raised, and he then said words to the effect of ‘Have either of you got anything to say or anything else to talk about?’ And Lee responded and said, ‘No’.

The appellant said she was taken aback by this as she was expecting ‘some big showdown basically and her airing her grievances with me’. The appellant continued:

Q:Was the question then posed to you as to whether you had any matters you wanted to raise?
A:Yes.
Q:And what did you say?
A:Well, I thought, well she's saying no then I'll say no as well because, from what I understood, she had issues with me and she wasn't raising them there. So I didn't feel comfortable to try and push and say, well actually you have got issues with me, what are they? I didn't feel comfortable saying that.
Q:Did you hope to restore a normal working relationship with her?
A:Yes, to some extent.
Q:Were you willing to have that relationship restored or were you resistant to it?
A:I wanted it to but I felt extremely uncomfortable because of what had been happening.
Q:Could you tell His Honour please your state of mind after that meeting when you left?
A:I was stressed.

Brett-Young’s evidence was that he expected that at the meeting the appellant and Formica would raise any unresolved issues between them. He assumed when nothing was said that they had worked things out between themselves. This was not an unreasonable assumption given the prior history of their relationship.

Formica’s evidence confirmed that nothing was said at the meeting about problems between the appellant and herself. After the meeting the two women left together and chatted on their way back to work.

As the trial judge found, no indication was given at this meeting to MBC and Brett-Young in particular, that there were ongoing difficulties between the appellant

and Formica, nor that the appellant was stressed, nor that the appellant was as she said in evidence ‘stressed’.

Moreover the evidence established that as a result of a failure to welcome Formica at a partners’ meeting that evening in circumstances where another new partner was welcomed, Formica was ‘peeved’ and that Formica rang the appellant to talk about her disappointment. The judge found this was indicative of an easing of tension between them and noted the appellant described the period after this meeting as a ‘peace period’. More specifically it seems to me that this evidence strongly supports the view that Formica did not hold the animus towards the appellant at this point in time which the appellant now alleges.

Paragraphs 5(h), (i), (k), (l) and (m) of the particulars of harassment contained in the statement of claim allege intimidation constituted by emails sent by Formica on 12 August about staffing matters, on 15 August concerning administrative arrangements and on 5 September relating to the organisation of a proposed Family Law department meeting without consultation with the appellant. None of these emails were in fact intimidating and their implications and consequences were not the subject of complaint by the appellant on 10 September 2003. It is unnecessary to address them further. The appellant submits that in finding that the appellant was not intimidated by these emails his Honour did not apply an objective test to the question whether they constituted bullying. The short answer to this submission is that the appellant’s reaction was itself evidence of the character of the emails and that on any objective view their content was not intimidating.

The emails of 23 September 2003

During September 2003 a series of emails passed between Formica, the appellant and Brett-Young about the question of what costs (if any) should be credited to Formica for work done on the appellant’s files by Formica during the appellant’s absence on maternity leave. On 9 September 2003 Formica emailed the

appellant concerning this issue and suggested it could be resolved by Brett-Young. The appellant responded saying, ‘I don’t have a problem’.

On 23 September 2003 Formica sent a further email to the appellant in the following terms:

(omitting formal parts)
Hi Fiona,
We need to sit down and calculate the apportionment of files for billing. Off the top of my head I worked on the following:
[Name] – already billed and costs divided between Fiona and georgie. Nothing to me.
[Name] – same
[Name] – same
[Name] – same
[Name] – same
[Name] – need a status report
[Name] – I expect billing for what I and Georgie did first half of this year. I’m not accepting 25% of Georgie’s rate. Therefore please provide me with bill before it is finalised.
[Name] – where is it at?
[Name] – has it been billed?
the maltese guy whose name escapes me –
there are others which I can piece together form my diary for the first 5 months of this year.
I also worked on other files during fiona’s maternity either directly or indirectly thru Georgie. Again off the top of my head they were:
[Name]
[Name]
[Name]
[Name]

[Name]
and others that will come to me.
At the very least they should be credited to me and not Fiona for obvious reasons. The simple scenario is if you’re at work you bill and if you’re on leave you don’t!!!!
Please provide me with up to date status reports for these files to begin with.
I don’t know why this matter keeps dragging on.
Can we organise a meeting for next week? Kate and Martine will have all the billing info so we can resolve it quite quickly.
thanks
Lee

Particular 5(k) of harassment alleges:

By email on 23.9.03 Formica unjustifiably harassed the plaintiff by stating that the plaintiff was delaying the resolution of costings for files purportedly worked on by Formica whilst the plaintiff was on maternity leave, unjustifiably alleged the plaintiff was crediting costings to her own advantage and against Formica’s interests, and humiliated the plaintiff by sending the email to other staff.

The trial judge found that the contents of this email were not harassing. He further rejected the proposition that the forwarding of the email to the personal assistants of the appellant and Formica humiliated the appellant. The appellant’s evidence was that she thought the forwarding was inappropriate but not that she was humiliated. Formica gave evidence of sensible, practical reasons for sending copies of the email to the personal assistants and was not cross-examined on this issue. The trial judge’s findings were supported by the evidence.

On 23 September the appellant sent an email to Brett-Young:

(omitting formal parts)
Hi Michael
This is the latest bullying email from Lee to me; sent to me at work from her home this afternoon. I addressed these issues a couple of weeks ago after the last “go at me” by email and told her that she has been and would be credited for work she’d done on my files. That was the first time I heard about her wanting full credit for all of Georgie’s work now that Georgie is not here. Georgie/Kate were on the phone to me every second day of my maternity leave from the end of January until my return in early May and Georgie had to come to my house for 5 hours one day because Lee didn’t have time for them. Lee readily stated in our last dept meeting that her own file of [name] consumed her for the months of March April and May. I gave Lee printouts of accounts reports which showed that a number of files were costed BEFORE I returned from leave and yet she is still having a go at me about them when she was the one in charge! A lot of the files she refers to haven’t been billed and she knows that. So much for communication and not sending aggressive emails. I was wondering when the next one would come.
I have been civil to her and made an effort a number of times to chat to her about work and non work related issues. She has not once initiated any of these conversations. I have had enough of this ongoing harrassment (sic) and undermining of me. She is on a power trip and I cannot work with her like this. I am really stressed by this; it has been going on now since January.
Fiona

The particulars of complaints contained in the appellant’s statement of claim allege:

By email dated 23.9.03 to Brett-Young the plaintiff detailed further concerns regarding Formica and the impact Formica’s behaviour was having on health and thereby sought his intervention.[27]

[27]Statement of claim dated 18 July 2007, particulars of complaint, [5](l).

In fact the email does not refer to an impact upon the appellant’s health. It simply asserts stress.

Further, the characterisation of Formica’s email as ‘bullying’ was not objectively true. Nor did the evidence demonstrate that Formica did other than make a bona fide claim to the costs in issue.

In cross-examination the appellant made clear that her concern was that she was undermined and harassed by the sending of Formica’s email to other staff.

The appellant’s email of 23 September 2003 thus demonstrates an unjustified perception of bullying and no more.

In any event, the evidence shows the issue was quickly resolved by MBC in the appellant’s favour. The appellant spoke to Brett-Young who first told Formica to stop processing costs with respect to the appellant’s files and then shortly thereafter told Formica that the firm was not concerned about the apportionment of the costs between the partners and that Formica should drop the issue. Prior to this resolution of the problem in favour of the appellant, there were however some other communications of which the appellant complains.

On 24 September 2003 the appellant emailed Formica at 8:40 am:

(omitting formal parts)
Do not send me ( or staff) any more terse emails about cost allocations for work on files whilst I was on leave. I am more than aware of your issues as was made clear to you a couple of weeks ago.

Formica responded:

(omitting formal parts)
As usual you have over reacted. there was nothing terse in my email. I want it resolved and as dept head you should be pro active about this instead of forcing me to keep raising it. I’m not interested in arguing Fiona – I want an outcome.

Particular 5(l) of complaints contained in the statement of claim alleges:

Formica by email to the plaintiff dated 24 September 2003 bullied, harassed and intimidated the plaintiff.

Unsurprisingly, the trial judge found that Formica’s response to the appellant did not constitute bullying, harassment or intimidation. Further, there was no sensible basis upon which to ascribe an ulterior motive to Formica in sending the email.

Particular 5(m) of harassment contained in the statement of claim next alleges:

Formica unjustifiably undermined the plaintiff’s position by sending an email on 24 September 2003 [scil. 26 September 2003] to the whole of the Family Law Department unauthorised by the plaintiff and assuming by its contents that Formica, not the plaintiff, was the de facto head of the Family Law Department.

The email referred to in particular 5(m) of harassment was sent on 26 September 2003 by Formica to the members of the Family Law department:

(omitting formal parts)
Hi all,
this is an important issue. As I hope we’ll be working more as a team in the future and handling each other’s files more regularly, we need to adopt a uniform way of managing them.
Please adhere to the following:
1.        correspondence only on spikes
2.        keep accounts, invoices etc together. I prefer to have a separate spike for these but for those of you who don’t, please don’t leave them loose at the front of the file.
3.        drafts of documents in a separate pile – marked ‘draft;
4.        don’t spike sealed court documents epecially (sic) orders. Keep recent order at front of spike for easy access.
5.        all court documents together in a pile either at back of file or in a separate folder.
Fiona and I work in a pretty similar fashion but it is important that Brian and Lisa adopt similar practices. If you require any further clarification please speak to me.

cheers
Lee

The appellant gave evidence that in her view the email impliedly asserted that Formica was the department head. Again, unsurprisingly, the trial judge rejected the view that the email was in fact expressed in terms which unjustifiably undermined the appellant’s position.

Particular 5(n) of harassment contained in the statement of claim next alleges:

Formica unjustifiably undermined and humiliated the plaintiff by sending an email copied to Brett-Young, to the plaintiff’s secretary on 24 September 2003 advising her not to process the plaintiff’s costings on files referrable to Formica without speaking first to Brett-Young and Formica.

At 4:28 pm on 26 September 2003 Formica sent an email to Watts stating:

(omitting formal parts)
Hi kate,
Please do not process any more bills which are referrable to me and/or Georgie without first speaking to Michael Brett Young and me.
thanks
Lee

The email was copied to Brett-Young.

Formica’s evidence was that this email was sent after Brett-Young had asked her to stop processing bills pending the resolution by her of the dispute with the appellant. The appellant’s evidence was that she regarded the email (of which she learnt subsequently) as an attempt to undermine her. In fact, as the trial judge found, it was a direct outcome of a process which the appellant had instigated, namely the resolution of the costs issue by Brett-Young.

On 8 October 2003 the appellant prepared a report to the partners of MBC in her capacity as head of the Family Law department. As his Honour recorded, the following statements appear in that report:

Brian, Lee and I have worked hard to absorb the dramatic changes in our department over the past few months and are now two operators down. We are coping with this but may need to review it in the new year. Support staff continue to work hard and are excellent team players.
…

The report continues under the heading of ‘Marketing’:

Each letter of introduction has been signed by the partner who is the personal contact. Lee is keeping a list of names and diarising dates for follow up calls. The intention is to attract more ‘financially well off’ clients whose cases may require more complex legal advice and to whom we can justify a greater hourly rate. We anticipate getting some work from these sources and then extending the client base from ‘word of mouth’ referrals from the satisfied clients.
In terms of other marketing, Fiona has been promoted in ‘the Leader’ newspaper in one of the MBC advertorials about new super laws. Lee was also quoted in a feature article about ‘men who kill their children’ in the Saturday Age a few weeks ago. In mid November, Lee will be involved in a two day conference presented by the Law Council of Australia. She will be training family lawyers who wish to acquire skills to do child representation work in the Family Court. In November, Lee will be presenting a paper on ‘New Developments in De Facto Property’ to the North West Regional Family Lawyers, in a conference in Dunkeld. Lee has assumed the role of marketing and promotion of the Family Law Department.
Dated: 8 October 2003
FB/RB

His Honour found the report indicates that whilst the department was very busy the staff including the appellant and Formica were coping. It expressly envisaged that Formica and the appellant were co-operating in marketing. There was no indication in this report about any difficulties between the two partners within the department namely the appellant and Formica.

In addition, there was other evidence that the appellant was working apparently satisfactorily during October. In particular she represented a union representative in respect of a custody dispute at short notice. Three partners sent her emails of congratulations and thanks. There appears to have been no evidence that she was not coping with her workload.

Particular 5(o) of harassment contained in the statement of claim next alleges:

At a departmental meeting on 15 October 2003, Formica unjustifiably undermined the plaintiff by arriving late, not acknowledging the plaintiff, advising at the meeting that she had applied for leave over the Christmas period without seeking the plaintiff’s approval as Department Head.

The evidence showed that the meeting in question took place on 15 October 2003. As the trial judge found, the appellant’s evidence concerning the meeting simply did not substantiate ‘undermining’ behaviour.[28]
[28]Judgment, [163]-]164].

On 30 October 2003 the appellant and Brett-Young had lunch at Brett-Young’s invitation. The appellant’s evidence was that in the course of the lunch she told Brett-Young that she and Formica had not been speaking for five weeks. He responded that he knew things were bad but not that bad. The appellant also said she told Brett-Young her health was suffering.

I think I told him - I can't remember if I told him then but I certainly said at some stage I'd been seeing a doctor and my health was suffering, my work was suffering and I was very stressed, and I believe she was harassing me in terms of the history of what had happened, and he said, you know, ‘Don't worry about it, I'll fix it, I'll sort it out.’

Brett-Young gave evidence generally to similar effect and the trial judge relevantly observed:

It is clear from this evidence that, whilst the exact words exchanged in the meeting are not agreed, the tenor of the conversation is agreed. This is the first time that any health issue has been raised by the plaintiff with Michael Brett-Young or any other person in a partnership position at MBC. Until that time, whilst there had been complaints by the plaintiff about administrative matters and interpersonal relationships with Ms Formica, the plaintiff had not indicated that her health was in any way at risk by her work as a department head at MBC.[29]

[29]Ibid [201].

It was this indicator of health impacts which his Honour regarded as engaging a duty of care.

Later that day Brett-Young told the appellant he had spoken to Formica and that they needed to have a joint meeting. A meeting was fixed for 7 November 2003.

Brett-Young then conducted what was styled a mediation on 7 November 2003 but this failed to resolve the appellant’s concerns.

Particular 5(p) of harassment contained in the statement of claim is:

At a meeting on 7/11/2003 with Brett-Young, Formica unjustifiably abused, humiliated and denigrated the plaintiff.

The appellant’s evidence was in part:
… Lee spoke first and she raised a number of issues about me, starting with her saying that she had no support from me the whole time she'd been at Maurice Blackburn, and that during my pregnancy all I was concerned about was billing and costing and nothing else in the department and that I had an attitude before I went on maternity leave, and I think she commented about the state of my practice while I was on maternity leave.
Q:       What was her comment?
A:I think - I can't recall exactly but I think it was something like it was a mess and, you know, I'd given her no recognition for all the hard work she had done, and she'd held out two olive branches to me in the past and I'd done nothing in return - the two olive branches being her phone call to me on the Friday before I went back to work trying to talk to me, and the second time being the bunch of flowers she'd given to me – and she said that she was very - words to the effect of she was very affronted by the fact that I'd had Georgie and Kate around to dinner and their partners during my maternity leave, and that I'd gone out to lunch or had coffee with some other members of the department, and she, I think, pretty much finished off by saying that I wasn't a good head of the department, I just ran it.
Q:       What was her demeanour like during these complaints about you?
A:       She was very cold and just clinical and quite forthright.
…
Q:Did Mr Brett-Young say anything after she had finished her complaints?
A:I think he might have just said one thing about, "Fiona said, well, you didn't do file notes" - sorry, that - I can't remember. Sorry, I can't recall. He just made one little comment and then he said - asked me if I had anything to say and I was really distressed hearing all this because I hadn't heard it before, she was basically questioning the whole history of her time at Maurice Blackburn which I just found incredible. And I answered a few of her issues but I could tell from her body language and how she was that she wasn't interested in what I had to say and I felt very uncomfortable.
Q:To the extent that you can recall what you said in response to her accusations, what do you believe you said?
A:I said I was really disappointed to hear what she said about my lack of support for her during her whole time at Maurice Blackburn, that was certainly not the case. And a previous discussion I'd had with her quite some time I'd - before I went on maternity leave I'd made myself available in the two days she was off work, to see clients or go to court for her. She knew that, she really took me up on that offer. Georgie was also always available.

Brett-Young’s evidence was that he was concerned the friendship between the appellant and Formica has fallen apart because their relationship was one of the bases on which MBC was building the Family Law department. He told them that it would be disaster if one of them left and asked them if there were issues either wished to raise. Formica then spoke generally about the issues in the department and in particular said she was not properly supported by the appellant. The appellant did not wish to respond so Brett-Young asked her to tell him her position after the weekend.

Formica gave evidence as follows:

Q:What's your recollection of that meeting on 7 November?
A:Mike commenced the - he termed a mediation, and he said that he wanted us to sort out our differences and he said at some stage, I can't quite remember the sequence of events, but that he was happy for us to either speak directly to each other and he would leave the room or he would be happy for each - to speak to each of us individually, and he would take as long as it took to clear the air of whatever it was that was happening, and then he asked - he said for us to think about that - and then he asked me to say a few words, and because it was a mediation conciliation thing I said words to the effect that Fiona and I had worked together for many years. We had been friends for a very long time. We'd had our hiccups during the year, but that there was no reason why we couldn't continue to work together.
Q:Did you deal with any of the issues that were concerning you about Fiona?
A:I might have said I know that Fiona wasn't happy about the file note issue, but that's all water under the bridge.
Q:Do you remember any other issues being raised by you about her?
A:No, because it was a conciliation, I wanted it to be as friendly as possible.
Q:Having said that what's your recollection as to what happened when you finished speaking?
A:When I finished Mike then looked at Fiona and she had been looking at her feet the whole time during his words and my words. She sighed deeply and she stood up and walked out.
Q:What do you say as to the suggestion that it was you who stormed out of the meeting?
A:That's a nonsense.
Q: Do you have a recollection of whether Fiona raised any problems that she had with you at that meeting?
A:She didn't say a word.

Formica also gave evidence that at the end of the meeting she was perplexed that she and the appellant could not solve their differences.

The trial judge preferred the evidence of Brett-Young and Formica to that of the appellant:

I have heard the evidence of each of the three participants to the meeting of 7 November 2003. I have heard them cross-examined. I prefer the evidence of Mr Brett-Young and Ms Formica to that of the plaintiff. I accept the plaintiff left the meeting/mediation without participating in the discussions with Ms Formica. The purpose of this meeting was to repair and mend the relationship between the plaintiff and Ms Formica. The plaintiff did not participate in the mediation process.
The Plaintiff’s evidence was she was distressed and disappointed as to what she had heard from Ms Formica. I find that the comments made by Ms Formica were an attempt to air the differences between the two women at the meeting. I find that this was done in [an] open and appropriate manner in order to achieve an outcome of reconciliation and resolution of the dispute as far as the plaintiff was concerned. This was a meeting the plaintiff, Ms Formica and Mr Brett-Young wanted to occur. It was clearly a dismal failure in achieving the outcome sought by all participants in the meeting.[30]

[30]Ibid [169]-[170].

The appellant bore the onus of satisfying the trial judge as to what occurred at this meeting. I am not satisfied that he erred in failing to accept her evidence. Once again, the trial judge was entitled to form a judgment in part having regard to his view of the reliability of the appellant’s evidence as a whole.

On 7 November 2003 Brett-Young organised a further meeting with the appellant alone. His evidence was that he thought it was at this meeting that the appellant told him she had been seeing a doctor. Brett-Young told the appellant he wanted her to remain at the firm but the appellant said she wanted to leave by the end of January. Brett-Young offered to bring in an outside mediator but the appellant said that it was not going to work because it was too late.

When pressed in cross-examination, Brett-Young repeated four times that the appellant told him at this point that she wanted to leave in January.

The appellant had a further meeting with Brett-Young on 14 November 2003 at which there was further discussion about the appellant’s entitlements on leaving MBC.

Finally, the appellant and Brett-Young met for lunch on 26 November 2003. Following this, there was an exchange of emails. The trial judge concluded as follows:

I accept that the plaintiff had decided to leave MBC. The dispute at this stage had become whether or not she was entitled to a redundancy or payment up until the end of her employment at the end of January 2004. It is clear from Mr Brett Young’s email quoted above and his evidence that at no stage was a redundancy to be offered to the plaintiff.[31]

[31]Ibid [209].

In turn he ultimately concluded on the facts:

I conclude that the first proper indication that the defendant could reasonably have foreseen the plaintiff was at some risk of psychiatric injury was when she advised Mr Brett Young that she was attending the doctor either on 30 October, as she attested or 1 November 2003 as deposed by Mr Brett-Young.
Mr Brett Young has then gone into action by way of organising a mediation and expressing concern for the plaintiff’s wellbeing. By that time it was clear on the evidence that the plaintiff had decided she was going to leave Maurice Blackburn Cashman and the only issue to be sorted out was the terms of her departure from MBC.
I find on the basis of the evidence that it was not reasonably foreseeable the plaintiff would suffer psychiatric injury as a result of her duties as head of department at Maurice Blackburn Cashman. The fact that the plaintiff continued to run the Family Law Department of MBC and report [to] the partnership as outlined in May 2003 and October 2003 is clear evidence she was coping with her duties. The successful management of the E.... G... proceedings which caused numerous partners to email congratulations and thanks to the plaintiff at the beginning of October 2003 shows the plaintiff was able to operate (and appear to do so) at that time.[32]
[32]Ibid [213]-[215].

Credit

These conclusions were buttressed by his Honour’s general findings relating to the credibility of the witnesses. His Honour found that the appellant was not trying to deliberately mislead the Court in her evidence. He accepted that the appellant had a significant depressive illness. He concluded that the appellant had formed the view or perception that Formica and Brett-Young were trying to get her to leave her employment at MBC and that as a result of this perspective she ‘reacted to a number of trivial interoffice and interpersonal conflicts’. He also found that on

occasion the appellant’s evidence involved exaggeration and on other occasions downplaying of the significance of events.[33]

[33]Ibid [284]-[286].

On the other hand, his Honour noted that Formica was prepared to make concessions in her evidence and that despite strenuous and extensive cross-examination she gave straightforward and credible evidence. He found that Formica was an honest, truthful and reliable witness. His Honour further recorded that the appellant’s counsel conceded in submission that Brett-Young’s credibility was not in question and found that this was an appropriate concession to make. His Honour found Brett-Young to be a considered, accurate and reliable witness. He readily conceded what he could not recall or did not know and gave forthright evidence in response to extensive cross-examination.

In combination these findings support a number of the individual conclusions which his Honour reached in relation to particular allegations of harassment and failure to respond to complaints.

In turn, his Honour’s findings justify conclusions that:

(a) the appellant was not bullied; and

(b) it was not reasonably foreseeable that the appellant might suffer psychiatric injury until late October/early November 2003.

The appellant must thus confront the principle of appellant restraint which applies when an appellant challenges factual findings based in significant part on assessment of the credibility of witnesses. This is a case like Bau v State of Victoria[34] in which there are no incontrovertible facts or uncontested testimony which show that the judge’s decision was clearly wrong. Nor is the trial judge’s view of the

evidence ‘glaringly improbable’ or ‘contrary to compelling inferences’.[35] There is no obvious basis for the court to interfere with his Honour’s critical findings of fact.

[34][2009] VSCA 107, [97] (per Neave JA).

[35]Fox v Percy (2003) 214 CLR 118, 125-6 (Gleeson CJ, Gummow and Kirby JJ).

I turn now to deal directly with the grounds of appeal and the appellant’s submissions with respect them.

Duty of care[36]

[36]Grounds 1, 2 and 3 of the notice of appeal are as follows:

1.The learned Trial Judge erred by failing to adjudicate upon or determine, whether adequately or at all, a primary issue in dispute between the parties, namely whether the respondent owed a duty to the appellant to ensure, so far as it was reasonable, that she not be exposed to injury in her employment.

2.The learned Trial Judge erred by failing to hold (to the extent that he did so fail) that the respondent owed a duty to take reasonable care to avoid psychological injury to the appellant by not subjecting her to bullying and/or harassing conduct.

3.The learned Trial Judge erred by failing to hold (to the extent that he did so fail) that the respondent owed a duty to take reasonable care to avoid psychological injury to the appellant by taking reasonable steps to act upon her complaints of bullying and/or harassing conduct.

At the outset of his judgment the trial judge addressed the principles governing the scope and content of the duty of care owed by MBC to the appellant.

His Honour first set out the following statement from the joint judgment of the High Court in Czartyrko v Edith Cowan University:[37]

… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. …

MR TREE: That’s so.
HIS HONOUR: There is none of this boorish or vulgar or - - -
MR TREE: No no.
HIS HONOUR: Depending what you are - - -
MR TREE: In fact I didn’t really need to read that sentence, Your Honour …

Bau[52] (a case in which the Court of Appeal refused to interfere with a trial judge’s finding of fact that no bullying occurred) was further relied on as an authority for the proposition that the cumulative effect of incidents may amount to harassment.[53] In my view the terms of the final address did not transform the appellant’s case into one based on a negligent failure to respond to complaints of perceived but illusory harassment. It remained as pleaded and as put in cross-examination a case premised upon actual harassment.
[52][2009] VSCA 107.
[53]It was a case which turned upon the judge’s assessment of whether in fact there was behaviour which, objectively assessed, amounted to bullying.

Further, and in any event, his Honour undertook a detailed analysis of the nature of the complaints made by the appellant and the question whether and when such complaints suggested danger to her psychiatric health. I turn next to the attack on his Honour’s findings with respect to the question of harassment within the context of which these issues were addressed and then to his findings with respect to foreseeability and breach which specifically addressed and responded to the evidence as to complaints.

Harassment[54]

[54]Grounds 4, 8, 9 and 10 of the notice of appeal are as follows:

4.The learned Trial Judge erred by failing to adjudicate upon or determine, whether adequately at all, that part of the appellant's case relating to the allegations of harassment of the appellant by Lee Formica particularised at para.5(a)-(q) of the Statement of Claim (hereinafter ‘the particularised events’) by:-

(a)considering each of the particularised events in isolation;

(b)failing to consider each of the particularised events in the full context and history of the relationship between the appellant and Formica;

(c)failing to consider the particularised events in combination or in totality.

…

8.The learned Trial Judge erred by failing to make findings in relation to the effect of the particularised events, whether individually, in combination, or in totality, upon the appellant.

9.The learned Trial Judge erred by failing to consider, whether adequately or at all, and make findings of fact in relation to, the extent of the respondent's knowledge of the effects of the particularised events upon the appellant.

10.The learned Trial Judge failed to consider, whether adequately or at all, and make findings in relation to, the response of a reasonably prudent employer in the situation of the respondent given the extent of its knowledge of the effects of the particularised events upon the appellant.

The primary contention of the appellant with respect to the trial judge’ findings concerning harassment is that his Honour failed to address the cumulative impact of the matters she relied upon.

As the appellant’s submission puts it the claim was ‘grounded in systematic harassment’. Further, as I have noted the definition of bullying put to his Honour was one of ‘repeated’ unreasonable behaviour.

In my view there is nothing in this submission. The trial judge made detailed findings which were entirely inconsistent with any finding of systematic harassment or repeated unreasonable behaviour. Not only did he reject the allegations of harassment but his findings demonstrate substantial periods of peace as between the appellant and Formica during the period complained of.

Further, insofar as it may be true that in a given case a series of inappropriate behaviours may collectively amount to bullying, when individually they would not, the facts as found by his Honour simply did not establish a basis for such a case. The appellant failed to prove materially inappropriate behaviours on the part of Formica. At best she established instances of robust expression of frustration concerning workload made to a departmental head.

The appellant did not prove ‘repeated unreasonable behaviour’ directed towards her which created a risk to health in accordance with the definition of bullying adopted for the purposes of the case.

More particularly, the core allegation of a ‘declaration of war’[55] was not made out for the reasons I have elaborated.
[55]Grounds 18 and 19 of the notice of appeal are as follows:
18.The learned Trial Judge erred by finding at [100] that the appellant had not made any file note of the so-called ‘declaration of war’ which had not been suggested to the appellant by either the learned Trial Judge or the respondent, and which finding was against the evidence and not reasonably open.
19.The learned Trial Judge erred in finding that there was no ‘declaration of war’ in that:
(a)contrary to His Honour's ruling, the complaint made by the appellant to Brett-Young arising in respect of it was corroborative of the appellant's allegations as to the conversation;
(b)His Honour failed to take into account that in making the complaint to Brett-Young, the unchallenged evidence was that within days Brett-Young sought to arrange a meeting between the appellant, Formica and himself to discuss issues between the appellant and Formica;
(c)His Honour failed to take into account the email dated 22 August 2003 from the appellant to Brett-Young in which she sought to have identified Formica's issues prior to the meeting;
(d)His Honour failed to consider as further corroboration of the alleged conversation, the appellant's history to Dr. Taylor on 15 August 2003, and her advice that an outside mediator be involved;
(e)His Honour, in finding that it would be unlikely Formica would have had the conversation with the appellant if she believed that the equity partners' intention was to play them off against each other until one left:-
(i)failed to consider the appellant's case that it was intimidatory in purpose and effect;
(ii)failed to have regard to evidence from Brett-Young (but denied by Formica) that Formica had, prior to her alleged conversation with the appellant, told him that the appellant was not pulling her weight;
(f)His Honour failed to consider whether, alternatively to finding the appellant fabricated the alleged conversation (if he did so find), the appellant's interpretation arose out of a genuinely held misunderstanding by her of what Formica had said;
(g)His Honour failed to consider the advantages in recollection possessed by the appellant over Formica and in this regard failed to take into account that Formica conceded her memory of that period of time was ‘all a haze’;
(h)further and alternatively to the above his Honour failed to give adequate reasons for making the finding.

Likewise for the reasons I have explained I do not accept that the individual findings made by the trial judge concerning harassment were flawed.[56]
[56]Grounds 15, 16 and 17 of the notice of appeal are as follows:
15.The learned Trial Judge erred by, having adopted at [32] the definition of ‘unreasonable behaviour’ as an element of bullying, thereafter failing to apply that definition to the particularised events, whether individually, in combination or in totality.
16.The learned Trial Judge's findings in relation to each of the particularised events were against the evidence and/or against the weight of the evidence.
17.The learned Trial Judge erred by finding at [57] that Formica did not expect her emails of 30 April 2003 to Ms. Watts to be sent on to the appellant, which was contrary to the unchallenged evidence of Formica.

The appellant also takes issues with the summary description of the matters alleged to constitute harassment and undermining as ‘trivial interoffice and interpersonal conflicts’. This summary description is utilised in the course of findings of the trial judge with respect to the overall credibility of the appellant. It is not to be substituted for his detailed findings of fact but rather to be understood in the light of them.

In my view his Honour’s conclusions as to the objective seriousness of the acts of perceived harassment accorded entirely with the weight of the evidence.

Reasonable foreseeability[57]

[57]Grounds 11, 12 and 13 of the notice of appeal are as follows:

11.The learned Trial Judge erred in finding at [215] ‘that it was not reasonably foreseeable the plaintiff would suffer psychiatric injury as a result of her duties as head of department at Maurice Blackburn Cashman’ in that his Honour:-

(a)misconceived the case against the respondent, which was that the appellant was at foreseeable risk of psychiatric injury resulting from multiple failures to properly act upon the appellant's complaints.

(b)confused the application of reasonable foreseeability of injury as a criterion for determining the existence of a duty of care with the application of reasonable foreseeability of injury as a necessary, though undemanding, element of any breach of a found duty of care;

(c)wrongly disregarded and/or failed to address unchallenged medical evidence of the causal relationship between Brett-Young's response to the appellant's complaints and the appellant's injury;

(d)failed to consider the unchallenged evidence of a well-recognised need for legal firms by 2003 to implement appropriate systems for handling complaints of harassment made by employees so as to avoid the risk of injury;

(e)failed to consider the respondent's particular specialist knowledge of the risk of psychiatric injury arising from mishandling of complaints of harassment.

12.The learned Trial Judge erred in finding that the first occasion that the respondent could reasonably have foreseen that the appellant was at some risk of psychiatric injury was on 1 November 2003.

13.The learned Trial Judge erred in failing to find that the respondent should reasonably have foreseen that the appellant was at risk of psychiatric injury no later than the receipt of the email of 23 September 2003.

For the reasons I have explained above the notion of cumulative harassment does not assist the appellant in establishing that the risk of psychiatric injury was foreseeable prior to late October 2003 by reason of the conduct of Formica towards her.

It followed from his Honour’s findings of fact that no bullying occurred which generated a reasonably foreseeable risk of psychiatric injury to the appellant and that the informed response which the appellant claimed was appropriate in cases of bullying was simply not engaged.

The appellant’s written outline of submissions identifies the email of 23 September 2003 to Brett-Young which commences ‘This is the latest bullying email from Lee to me …’ as critical in this context. As I have already indicated:

· contrary to the appellant’s pleading this email did not raise a health issue in terms;

· the email from Formica was not in fact an instance of bullying; and

· Brett-Young responded by settling the costs issue in the appellant’s favour.

Further, the complaints made prior to this date by the appellant to MBC did not make such injury foreseeable, when they are considered in context and it is understood that they did not make any allegation of health risk prior to that date.

Contrary to the appellant’s written outline of submissions,[58] the advice to MBC on 30 October 2003 that workplace stress was causing the appellant health issues was a very material sign of a more serious situation than that of which the appellant had previously advised her employer.
[58]At [22].

Contentions with respect to breach

It followed from his Honour’s conclusions concerning reasonable foreseeability that a relevant duty of care was not engaged until late October 2003.

Independently of this conclusion his Honour assessed each of the allegations of breach of duty and found that they were not made out as a matter of fact.

At the outset of his judgment his Honour noted that the enquiry about the breach of duty must attempt to identify the reasonable employer’s response to the foresight of the risk of occurrence of the psychiatric injury suffered by the plaintiff.[59] His Honour cited the observations of Hayne J in Vairy v Wyong Shire Council:[60]
[59]Judgment, [22].
[60](2005) 223 CLR 422.

Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.
There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.
Look forward or look back?
When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.[61]

[61]Ibid [125]-[126] (emphasis in original).

His Honour further cited the observations of Spigelman CJ in Nationwide News Pty Ltd v Naidu[62] concerning the prospective nature of the enquiry as to breach in cases of psychiatric injury:

The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
…
The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.[63]

[62](2007) 71 NSWLR 471.

[63]Ibid [20] and [23].

There is no error in the principles which his Honour applied to the enquiry about breach of duty. The critical task was to identify the reasonable person’s response to foresight of the risk of occurrence of injury of the type which the plaintiff allegedly suffered. His Honour dealt with the alleged particulars of negligence contained in the statement of claim as follows:

(a)Through each of the acts of harassment of Formica particularised in (a) to (q) of paragraph 5 hereof the plaintiff was exposed to intended mental stress;
(b)Alternatively to (a) by each of the acts of harassment of Formica particularised in (a) to (q) of paragraph 5 hereof the plaintiff was exposed to mental stress without concern for her health; …

It followed from his Honour’s findings that there was no evidence to justify the allegation of acts of harassment by Formica that the allegations in particulars (a) and (b) must fail. This is so whether they are regarded individually or as the appellant urges cumulatively.

(c)Through the actions and inactions of Brett-Young in not intervening, supervising or controlling Formica when requested as particularised in (a) to (o) of paragraph 5, being complicit in the furtherance of Formica’s plan to replace the plaintiff as head of the Family Law Department; …

Likewise it followed from his conclusions of fact that there was no credible evidence of complicity in a plan to replace the appellant as head of the Family Law department.

(d)Failing to monitor, supervise or control Formica properly at all in her dealings with the plaintiff;
…
(f)Failing to take any effective steps to intervene, supervise or control Formica in her dealings with the plaintiff when requested by the plaintiff as particularised in (a) to (n) of paragraph 5; …

It also followed from his Honour’s findings that Brett-Young performed his duties as managing partner appropriately. In particular he actively attempted to

resolve the differences between the appellant and Formica whenever they were drawn to his attention and took reasonable steps to do so.

(e)Failing to heed the warnings given or warning signs exhibited by the plaintiff particularised in (a) to (n) of paragraph 5 in relation to the effect of Formica’s treatment of her on her health; …

As the trial judge noted, this allegation assumes that the appellant did give warning signs as the effect on her health of conflict with Formica. It followed from his Honour’s findings of fact that the first warning given was on 30 October 2003. In turn Brett-Young responded appropriately to the complaint made by the appellant by facilitating an attempt at mediation as quickly as possible after that date. From that point on, as his Honour found, the appellant was intent on negotiating a redundancy package to exit from MBC.

(j)Failing to appoint an independent mediator and/or engage other personnel to resolve the conflict between Formica and the plaintiff; …

His Honour found that Brett-Young did offer an independent mediator to the appellant but that the appellant rejected such offer.

(g)Failing to have any, or any proper protocol for dealing with intra-office bullying, harassment and/or conflict;
(h)If there was a proper protocol for dealing with intra-office bullying, harassment and/or conflict, failing to implement the protocol properly or at all;
(i)Failing to appoint as practice manager/human resources manager a person with sufficient training, experience and/or qualifications to deal with intra-office bullying, harassment and/or conflict; …

As his Honour observed these allegations revolve around the systems in place at MBC. His Honour accepted the evidence of Brett-Young that he was fully aware of bullying in the workplace issues in 2003. Brett-Young gave evidence that dealing with bullying involved an application of commonsense to the industrial issues with the firm. He further stated that the partners had had a number of seminars at that time relating to issues of staff management, stress and the like. His Honour was satisfied that Brett-Young in his capacity as managing partner had sufficient training and experience to deal with staffing issues within the firm of MBC in 2003. In my view, once the appellant failed with respect to the threshold allegations of harassment and further failed to make out allegations of complaint save to the extent the trial judge found, these allegations must also fail. Each of them is premised upon the existence of ‘intraoffice bullying, harassment and/or conflict’.

(k)By threatening the plaintiff with closure of the Family Law department when she complained of the conduct of Formica as particularized in (a) to (n) of paragraph 5.

This allegation failed on the facts. His Honour did not accept the appellant’s evidence that Brett-Young threatened her with the closure of the Family Law department when she complained of the conduct of Formica.

It follows that none of the allegations of breach were established on the facts.

I do not accept that the trial judge failed to adjudicate upon the allegations made by the appellant.[64] The trial judge responded directly to each allegation of breach. Nor do I accept that he failed to expose any adequate reasoning for his conclusions as the appellant alleges.[65] Rather he responded directly to each allegation made by the appellant in relation to the harassment which she perceived and the complaints which she in fact made.
[64]Ground 5 of the notice of appeal is as follows:
5.The learned Trial Judge erred by failing to adjudicate upon or determine, whether adequately or at all, that part of the appellant's case which asserted that the several responses or non-responses of the respondent to the appellant's complaints and requests for intervention particularised at para.5(a)-(o) of the Statement of Claim (hereinafter ‘the appellant's complaints’) were not ones that a reasonably prudent employer in the respondent's position would have made.
[65]Ground 6 of the notice of appeal is as follows:
6Alternatively, to the extent that the learned Trial Judge found at [294] ‘that Mr. Brett-Young acted as a reasonably prudent employer would act in the circumstance (sic) as I (sic) them (sic) for (sic) 2003 at MBC’ failed to:-
(a)expose any or any adequate reasoning to support such a conclusion or finding;
(b)have any or any adequate regard to the unchallenged evidence as to what comprised reasonable steps for an employer such as the respondent in 2003 to do by way of acting upon complaints of bullying and harassment.

Further, his Honour did not err in considering whether the responses of the partner charged with the supervisory role of managing partner were reasonable in the circumstances of the case.[66] The system of work adopted by MBC necessarily required that this issue be addressed. It was not unreasonable to charge the managing partner with the task of supervising and resolving disputes between partners.

Causation[67]

[66]Grounds 7 and 14 of the notice of appeal are as follows:

7.The learned Trial Judge erred in law by finding at [29] that Michael Brett-Young’s role as managing partner of the respondent, and his response to the requests and complaints made both by the appellant and Formica, were relevant to the determination of foreseeability in the case.

…

14.The learned Trial Judge erred by failing to find that:-

(a)Brett-Young's response to the appellant's email to him dated 23 September 2003; and

(b)his management of the mediation/meeting of 7 November 2003;

was in breach of a duty of care owed to the appellant to ensure her health and safety as far as it was reasonably practical to do so.

[67]Grounds 20 and 21 of the notice of appeal are as follows:

20The learned Trial Judge erred, having found at [261] that the appellant suffered depression with anxiety features, by thereafter failing to:-

(a)determine the cause of the appellant's condition and, particularly:-

(i)determine whether the cause of the appellant's condition was one or more the particularised events, or the appellant's perception of the particularised events;

(ii)determine whether the cause of the appellant's condition was one or more of the respondent's responses to, or lack of response to, the appellant's complaints.

21.The learned Trial Judge erred in failing to accept at [276] the unchallenged evidence of Dr. Koman as to causation.

His Honour could not sensibly make further findings concerning causation beyond the finding that by the time the appellant’s complaints engaged MBC’s duty of care in late October 2003 the appellant had already determined to leave her employment. There is no sensible basis on which he could have made findings as to causation with respect to breaches of duty which he found did not occur.

Insofar as his Honour recorded other significant stresses in the appellant’s life which may have been causative of her psychiatric condition at the time of trial and insofar as he preferred the medical opinion of the appellant’s treating psychiatrist to other opinions proffered on her behalf, such matters were not strictly necessary to his judgment.

The question of whether stress suffered in the course of the appellant’s employment at MBC was a cause of her ongoing psychiatric condition was in the absence of proof of negligence unnecessary to finally answer.

Other matters

I have incidentally dealt with grounds of appeal relating to particular findings of fact in the course of addressing the evidence as to harassment and complaints.[68]
[68]Grounds 15-17 are dealt with above at [190].

Conclusion

It follows that the appeal must be dismissed. His Honour’s findings as to duty of care, reasonable foreseeability and breach accorded with the evidence.

MACAULAY AJA:

For the reasons given by Osborn JA, I agree that the appeal should be dismissed.

[2013] VSCA 122

22 May 2013