Christos v Curtin University of Technology - [2017] WASCA 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHRISTOS -v- CURTIN UNIVERSITY OF TECHNOLOGY [2017] WASCA 110

CORAM: MURPHY JA
MITCHELL JA
BEECH JA

HEARD: 16 MARCH 2017

DELIVERED : 21 JUNE 2017

FILE NO/S: CACV 52 of 2015

BETWEEN: GEORGE ARTHUR CHRISTOS
Appellant
AND
CURTIN UNIVERSITY OF TECHNOLOGY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :CHRISTOS -v- CURTIN UNIVERSITY OF TECHNOLOGY [No 2] [2015] WASC 72
File No  :CIV 1363 of 2009

Catchwords:

Negligence - Psychiatric injury - Allegations of bullying and victimisation in workplace - Dismissal from employment - Employer's grievance and dispute resolution policies and procedures - Whether breach of duty of care - Whether psychiatric injury foreseeable - Whether judge applied correct test - Causation - Whether correct test of causation applied by trial judge

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G M G McIntyre SC & Mr M A Tedeschi
Respondent: Mr G R Hancy

Solicitors:

Appellant: Blatchfords Lawyers
Respondent: Lavan Legal

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Christos v Curtin University of Technology [No 2] [2015] WASC 72
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

MURPHY JA:

Introduction

This is an appeal against a decision of McKechnie J in Christos v Curtin University of Technology [No 2][1] (primary decision).
[1] Christos v Curtin University of Technology [No 2] [2015] WASC 72.
The primary proceedings concerned a claim by the appellant (Dr Christos) against his former employer (Curtin) for damages for psychiatric injury allegedly caused by Curtin's breach of contract, negligence and breach of statutory duty.[2]
[2] The statutory duty said to have been breached is contained in s 19 of the Occupational Safety and Health Act 1984 (WA). The judge found this statutory duty to be equivalent to breach of the common law duty of care: primary decision [36].
In general terms, Dr Christos, whose employment was terminated by Curtin with effect from 28 October 2004,[3] alleged that Curtin was in breach of contract and was negligent in the period 20 February 2003 to 28 October 2004:
(a)for failing to assess and resolve, in accordance with Curtin's grievance and dispute resolution policies and procedures, several grievance complaints made by Dr Christos against Curtin and members of its staff over a period commencing on 1 May 2002;[4]
(b)in that Curtin and various staff members bullied, harassed and victimised him.[5]
[3] Primary decision [7], [401]; GB 951.
[4] Primary decision [75] - [76], [139].
[5] Primary decision [10] ‑ [15], [77].
The primary judge dismissed the action by Dr Christos. Dr Christos has appealed to this court. For the reasons which follow, the appeal should be dismissed.

Broad overview of material events[6]

[6] Unless otherwise indicated, this overview is derived from primary decision [1] ‑ [9], [679.5] ‑ [679.6].

In January 1991, Dr Christos was appointed as a lecturer in applied mathematics at Curtin, obtaining permanent tenure on 12 June 1992.
Beginning shortly after his appointment, Dr Christos was in conflict with staff members, particularly the Head of the Department of Mathematics and Statistics. In May 2002, Dr Christos engaged Curtin's dispute resolution policy by making a formal written grievance complaint. According to the policy, grievances should be resolved in three months. The grievance complaint made by Dr Christos in May 2002 was not resolved within the proposed time frame, for which Curtin was at fault.
In August 2002, Curtin received 14 complaints from six to seven students about Dr Christos.[7] On 2 September 2002, Dr Christos was lawfully suspended from teaching because of these complaints. Most of the complaints were not sustained and he was counselled for one minor matter and subsequently reinstated.
[7] Primary decision [76(c)].
On 4 November 2002, Dr Christos went on sick leave. Effectively he never returned to work, although he did attend to some matters from time to time. Instead, as suggested by his general practitioner, he took long service leave in the first half of 2003.
Dr Christos lodged a workers' compensation claim in 2003. In due course, that claim was rejected. During 2003 there were communications between Dr Christos, representatives of Curtin and various doctors concerning, amongst other things, the resolution of his grievances. Dr Christos's list of grievances, and the number of persons he held responsible for the grievances, continued to grow. Dr Christos complained of bullying, victimisation and harassment by various Curtin staff members during this time.
On 12 July 2004, Dr Christos took his work computer to Curtin IT for repairs. This was a computer which he had available to him for use at home. When the computer was examined, it had a quantity of illegally downloaded music and some pornography. Apart from some files which Dr Christos suggested were for some work he had done on 'memes' it is not suggested that Dr Christos was responsible. Another person close to Dr Christos was responsible for the music and pornography.
The discovery of this material set in train a process which resulted in the Vice‑Chancellor terminating Dr Christos's employment with effect from 28 October 2004.
In November 2004, Dr Christos took proceedings for wrongful dismissal before the Australian Industrial Relations Commission, alleging that his dismissal was harsh, unjust and unreasonable. He was unsuccessful in those proceedings, with his application being dismissed by decision dated 22 March 2006.[8]
[8] Primary decision [8], [77] - [78].
By decision dated 25 September 2006, the Full Bench of the Australian Industrial Relations Commission refused leave to appeal and dismissed his appeal from the decision dated 22 March 2006.[9]
[9] Primary decision [8], [77] - [78].
On 20 February 2009, Dr Christos commenced proceedings against Curtin for alleged psychiatric injury.
Dr Christos's statement of claim gave particulars of two psychiatric injuries allegedly caused by Curtin's alleged breaches. One was an 'adjustment disorder with mixed anxiety and depression', and the other was a 'major depressive disorder and anxiety disorder'. It was alleged that Dr Christos had a 30% permanent psychiatric impairment.[10]
[10] Primary decision [86].

The primary decision

In general terms, Dr Christos's grievances included the following:
(a)his initial grievance in May 2002 involving allegations of unfair treatment;[11]
(b)a dispute over the complaints by students;[12]
(c)a dispute over his writing to the then Premier in September 2002 on Curtin's letterhead concerning changes to the motor vehicle number plate system;[13]
(d)the rejection of his request to use, for another purpose, an air ticket he had not utilised to attend a conference in March 2003 on behalf of Curtin;[14]
(e)his failure to be nominated for the 'excellence and innovation in teaching' award;[15]
(f)attempts by Curtin to have his office available for other staff while he was away;[16]
(g)the rejection of his request for expenditure of funds to purchase a camera and for a dinner;[17]
(h)a dispute over leave.[18]
[11] Primary decision [2], [139], [145].
[12] Primary decision [76], [171].
[13] Primary decision [170]; GB 299.
[14] Primary decision [76] - [77], [292].
[15] Primary decision [76] - [77], [144].
[16] Primary decision [336], [338], [341].
[17] Primary decision [352], [385].
[18] Primary decision [296].
It was not in dispute that Curtin owed Dr Christos a duty of care.[19] Nor was it in dispute that Dr Christos was psychiatrically disabled.[20] The central issue in dispute was whether Curtin breached its duty of care and, if so, whether the breach was 'a' cause of Dr Christos's ongoing psychiatric illness.[21]
[19] Primary decision [12].
[20] Primary decision [11].
[21] Primary decision [11].
As to Dr Christos's psychiatric condition, the judge found that Dr Christos first suffered from an adjustment disorder (a psychiatric illness) on or about 2 September 2002.[22] In that regard, his Honour generally accepted the evidence of Dr Terace, a psychiatrist, who said that Dr Christos's adjustment disorder arose on or about 2 September 2002.[23] Dr Terace also agreed in cross‑examination that Dr Christos 'may well have had an adjustment disorder from May 2002',[24] but the judge does not appear to have found that Dr Christos's adjustment disorder had occurred that early. The judge also accepted that by 24 August 2009, Dr Christos's adjustment disorder had developed into a condition best described as 'major depression, chronic, of at least moderate severity'.[25]
[22] Primary decision [185], [189].
[23] Primary decision [570(5.2)], read with [185], [189], [523], [562].
[24] Primary decision [605].
[25] Primary decision [573], [639].
The judge observed that a number of the events pleaded by Dr Christos had occurred prior to six years before the issue of the writ on 20 February 2009, and that to the extent that Dr Christos sought to rely on breaches of contract or tortious damage which occurred prior to 20 February 2003, the claims were statute barred.[26] However, his Honour recognised that the grievance proceedings that were set in train prior to 20 February 2003 were still of some significance because Dr Christos alleged that Curtin breached its obligations in failing to resolve the early grievance complaints.[27]
[26] Primary decision [10], [100], [135], [652], [673] ‑ [675].
[27] Primary decision [10].
The judge found that in the period 20 February 2003 to 28 October 2004:
(a)the risk of psychiatric injury was not foreseeable;[28]
(b)Curtin acted reasonably at all material times and did not breach any implied or incorporated term of its contract with Dr Christos, nor did it breach its duty of care;[29]
(c)none of Curtin's staff bullied, harassed or victimised Dr Christos;[30]
(d)Dr Christos suffered an adjustment disorder which was caused by his lawful suspension of employment in September 2002;[31]
(e)the actions of Curtin's staff did not materially cause or contribute to Dr Christos's psychiatric disability.[32]
[28] Primary decision [13], [639], [643].
[29] Primary decision [13].
[30] Primary decision [14], [679].
[31] Primary decision [637], [645], [647] ‑ [648], [679].
[32] Primary decision [654], [679].

Grounds of appeal

Senior counsel for Dr Christos indicated that the appeal did not involve any challenge to the judge's findings as to the absence of bullying or victimisation. Senior counsel said, in effect, that the appeal only concerned Dr Christos's case in relation to the failure to assess and resolve Dr Christos's grievances in the period 20 February 2003 to 28 October 2014.[33] Senior counsel for Dr Christos indicated that Dr Christos's case could in substance be summarised as follows:[34]
1.In the relevant period from 20 February 2003 to 28 October 2004, a reasonable person in Curtin's position would have foreseen a risk which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos's grievances (lodged in 2002 and subsequently) would cause or aggravate a psychiatric injury in Dr Christos.
2.In order to avoid that risk of psychiatric injury, a reasonable person in Curtin's position would, in the relevant period, have progressed and sought to resolve Dr Christos's grievances in accordance with the grievance resolution policy.
3.In the relevant period, Curtin failed to progress and seek to resolve Dr Christos's grievances in accordance with the grievance resolution policy.
4.That failure, in the relevant period, to progress and seek to resolve Dr Christos's grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.
[33] Appeal ts 17, 19.
[34] Appeal ts 16 - 19.
The grounds of appeal, read with Dr Christos's written and oral submissions, are to the following effect.

Ground 1

In ground 1, Dr Christos alleges that the judge erred in law in not applying the correct legal test of foreseeability as explained in Wyong Shire Council v Shirt.[35] In other words, ground 1 relates to foreseeability in the context of breach of duty, and not foreseeability in relation to the existence of a duty of care.[36]
[35] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; ts 21.
[36] cf Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51 [45].
In particular, Dr Christos alleges that the judge erred in law:
(a)by applying a test of whether any injury was 'likely', with reference to certain evidence of Dr Terace;
(b)by finding that foreseeability was not established because he had found that Curtin's response to any risk was reasonable and that Curtin had not engaged in bullying;
(c)by failing to take into account that Curtin knew at least from about 26 June 2003 that Dr Christos had an adjustment disorder and that it was not remote or fanciful that his psychiatric condition would not improve or could deteriorate if reasonable care were not taken by Curtin; and
(d)by failing to consider the particular position of Dr Christos and instead addressing the question of foreseeability by reference to employees in general as a class, thereby misunderstanding or misapplying Koehler v Cerebos (Aust) Ltd.[37]

Ground 2

[37] Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44.

Ground 2 relates to the alleged failure to exercise reasonable care in relation to the grievance process in the relevant period. It alleges errors of law.[38] By ground 2, Dr Christos alleged that the judge erred in law, summarised as follows:
(a)By misdirecting himself that a finding of bullying, harassment and victimisation was necessary in order to make a finding that Curtin breached its duty of care, when he should have directed himself that such a finding was not necessary. Dr Christos submits that by erroneously focusing on whether bullying, harassment of victimisation had occurred, the primary judge failed to identify that what was relevant was whether there had been a continuing course of conduct giving rise to a continuing grievance which Curtin failed to address.[39]
(b)By finding that because the failure to resolve Dr Christos's initial grievance within the timeframe stipulated in the grievance resolution policy was a matter which occurred prior to 20 February 2003, it was not open to the court to take into account that Curtin's failure to respond to the grievance constituted a continuing course of neglect to comply with the contract between the parties, which continued beyond the limitation date, and was not time‑barred.[40]
(c)By misdirecting himself that he needed to be satisfied as to a course of conduct continuing after the limitation date of 20 February 2003, in order to take into account actions occurring prior to 20 February 2003 as relevant to establishing a breach by Curtin. It is alleged that the judge should have concluded that the breach of duty was to be inferred from Curtin's continuing failure after 20 February 2003 until 28 October 2004, to comply with its duty to Dr Christos. Dr Christos submits that the judge looked for a course of conduct which continued unabated beyond 20 February 2003, when Dr Christos's real complaint was that Curtin had done nothing in response to Dr Christos's grievances.[41]

Grounds 3, 4 and 5

[38] Although the chapeau to ground 2 at one point referred to error of fact, and although Dr Christos had lodged for filing a schedule purporting to deal with the judge's findings of fact with reference to certain evidence, senior counsel for Dr Christos did not rely on any alleged errors of fact in respect of ground 2 (appeal ts 16 ‑ 17, 19 ‑ 20, 33 ‑ 37).

[39] Appellant's submissions, pars 18 ‑ 21.

[40] Appellant's submissions, pars 22, 33 - 39.

[41] Appellant's submissions 40 ‑ 42.

Grounds 3, 4 and 5 relate to causation.
Ground 3 alleges that the judge erred in law by directing himself to apply, and in fact by applying, a test other than the correct test of causation in respect of the injury suffered by Dr Christos. In this regard, it is alleged by way of particulars that:
(a)The judge erred in law by limiting his consideration of the cause of the injury to the 'operative cause' or the 'seminal cause' of the injury.
(b)The judge erred in law and fact in finding that Curtin's failure to resolve Dr Christos's formal grievances was not a cause or contributing cause of Dr Christos's psychiatric injury.
Although particular (b) of ground 3 refers to an error of fact, the submissions in support are confined to alleged errors of law. Dr Christos's complaints regarding error of fact in relation to the findings on causation are the subject of grounds 4 and 5.
Ground 4 alleges that the judge erred in law by misdirecting himself that it was open to conclude, and erred in fact by concluding, that the cause of Dr Christos's injury was not that Curtin failed to deal with his formal grievances, but that Curtin failed to deal with the grievances in a manner that exonerated Dr Christos. In this regard, it is alleged that:
(a)The judge erred in law and fact in finding that there was any, or any sufficient, evidence from which to conclude that Dr Christos would not be satisfied with the resolution of the grievances and that only the resolution of the grievances in his favour would satisfy him.
(b)The judge erred in law by misdirecting himself to speculate, and erred in fact by speculating, as to what might satisfy Dr Christos in the event that his formal grievances were dealt with in circumstances where no grievance had been dealt with.
Ground 5 alleges that the judge erred in fact in failing to find that Curtin's failure to deal with Dr Christos's formal grievances contributed to his psychiatric injury, and that the judge's finding to the contrary was against the weight of the expert evidence. In that regard, Dr Christos alleges:[42]
(a)the judge ought to have found, on the basis of evidence given by Dr Manner, Dr Choy, Dr Bill, Dr Spear and Dr Bajrovic, that Curtin's failure to deal with the grievances contributed to Dr Christos's injury; and
(b)the judge 'unreasonably disregarded' aspects of Dr Terace's evidence in cross‑examination.
[42] Appellant's submissions, pars 62 - 65.

Disposition

Ground 1

Senior counsel for Dr Christos approached the appeal on the basis that a psychiatric injury first emerged after 20 February 2003 (ie, within a six‑year period prior to the issue of the writ).[43] It was alleged that Curtin knew of the adjustment disorder by at least 26 June 2003,[44] when Dr Terace reported to Curtin's workers' compensation solicitors that he had examined Dr Christos on 16 May 2003 and found that his symptoms met the criteria of '[a]djustment disorder, being a recognised psychiatric condition'.[45]
[43] Appeal ts 24.
[44] Appeal ts 27 - 30.
[45] GB 1225 - 1226, 1233.
Approaching ground 1 on the basis that the adjustment disorder first emerged after 20 February 2003 is inconsistent with the judge's finding to the effect that Dr Christos first suffered an adjustment disorder on or about 2 September 2002.[46] Nevertheless, the disposition of ground 1 will be approached on the basis advanced by Dr Christos in this appeal.
[46] Primary decision [185], [189], [570(5.2)].

The judge quoted the words of Mason J in Shirt, including the following:[47]
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. …
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.
[47] Primary decision [634], quoting Shirt (47 - 48).
His Honour also said, in effect, that Dr Christos must prove that the risk of psychiatric injury was reasonably foreseeable.[48] His Honour also said (without challenge in this appeal):[49]
None of Curtin's witnesses were cross-examined as to whether they knew or had cause to suspect that the plaintiff would suffer a psychiatric injury.
[48] Primary decision [635].
[49] Primary decision [639].
His Honour made the following finding:[50]
I find that Curtin through its staff did not bully, victimise or harass the plaintiff. Whether there is a breach of a duty of care must depend on a finding that Curtin's responses to the plaintiff were appropriate and, in the circumstances, reasonable. In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.
[50] Primary decision [643].
The preceding finding is not, at least on its face, with respect, entirely clear. It is, however, to be understood in the context of the judge's reasons as a whole, including the following findings:[51]
[51] Primary decision [639], [679], [683] - [684].
It may be accepted that [Curtin's witnesses] knew [Dr Christos] was stressed and anxious through reports from Dr Choy, Ms Erica Anderson and Dr Sean Murray among others, but the evidence does not permit a finding beyond that. Dr Terace, whose evidence I accept, did not regard the various offences about which the plaintiff complains are likely to lead to a psychiatric disorder.
…
•Relevant Curtin staff knew from 20 February 2003 that [Dr Christos] was stressed and on sick leave.
•However, the risk that [Dr Christos] might develop or exacerbate a psychiatric disorder or illness was not reasonably foreseeable by Curtin.
…
A finding of foreseeability of injury is inextricably linked in this case to a finding of bullying, victimisation and harassment.
Absent such behaviour, the objective actions of Curtin evidenced by the witnesses and the documentation does not permit a finding that those actions carried with them the foreseeable risk of psychiatric injury. (emphasis added)
As the italicised words in the previous paragraph indicate, the judge was evidently aware (although his language was not always explicit in this regard) that the question was whether there was a foreseeable risk of developing a new psychiatric disorder or exacerbating an existing one.
It appears from the foregoing that, on the proper construction of his Honour's reasons for judgment, his Honour's reasoning was as follows:
(a)Curtin knew from 20 February 2003, if not before, that Dr Christos was stressed and on sick leave;
(b)a reasonable person in Curtin's position would have foreseen that any conduct of bullying, victimisation or harassment towards Dr Christos would involve a risk of psychiatric injury to him;
(c)there was no such bullying conduct; and
(d)a reasonable person in Curtin's position would not have foreseen that its conduct otherwise (including in relation to the grievance process) involved a risk of new psychiatric injury, or a risk of exacerbating an existing psychiatric injury.
This is not to say that the judge reasoned that any conduct other than bullying, victimisation and harassment could or would not give rise to a foreseeable risk of psychiatric injury. Rather, on the judge's reasoning, it must be determined whether the particular conduct in question, including omissions, involved a foreseeable risk of psychiatric injury.
It is then necessary to identify the particular conduct (including omissions), which his Honour said a reasonable person in Curtin's position would not have foreseen as involving a risk of psychiatric injury. The relevant conduct for this purpose is set out later in these reasons, and in particular in pars (1) ‑ (23) of [56] below. In general terms, the conduct involved:
(a)The receipt and consideration by Curtin of Dr Terace's letter of 6 June 2003, in which Dr Terace advised Curtin that it was in the best psychological interests of Dr Christos for the grievance resolution process to proceed despite Dr Christos's medical condition and the distress that completing the grievance resolution process may entail.[52]
(b)Within a week after receiving that report, Curtin wrote to Dr Christos seeking to make arrangements with Dr Christos to proceed with the grievance process.[53]
(c)Curtin did not ultimately proceed with the grievance process in accordance with its grievance procedures because the process required Dr Christos's cooperation, and Dr Christos was unable or unwilling to participate, or at least unable or unwilling to participate in any orderly or meaningful way, in the grievance procedures.
[52] GB 469.
[53] GB 480.
It was open to the judge to conclude that a reasonable person in Curtin's position would not have foreseen that its conduct, including omissions, in these respects would involve the risk of a new psychiatric injury or a material exacerbation of his existing adjustment disorder. That is particularly so where none of Curtin's witnesses were cross‑examined as to whether they knew or had reason to suspect that Dr Christos would suffer a psychiatric injury. No error of law is disclosed.
In relation to the particular matters alleged in ground 1, the reference in par (a) of [24] above to Dr Terace's evidence to the effect that Dr Christos's complaints were not 'likely' to lead to a psychiatric disorder does not, in the context of the reasons read as a whole, bespeak error. The judge correctly identified the legal test in Shirt at the outset, set out its terms, and concluded that section of the reasons with the finding that 'an inference cannot be drawn that the risk of psychiatric injury was foreseeable' (emphasis added).[54] In this context, his Honour was indicating that, in medical terms (according to Dr Terace), it was unlikely that the grievance resolution process would result in psychiatric injury, and that matter bore upon whether a reasonable person in Curtin's position would have foreseen the risk of psychiatric injury.
[54] Primary decision [643].
The second particular (par (b) of [24] above) is not a proper characterisation of the judge's reasons, read as a whole. The judge's reasoning, on a proper construction of his reasons, is referred to in [38] ‑ [40] above.
As to the third particular (par (c) of [24] above), Dr Terace's report of 26 June 2003 was addressed in detail.[55] Also, Curtin acted upon Dr Terace's earlier letter of advice of 6 June 2003 (following Dr Terace's examination of Dr Christos on 16 May 2003 on the basis of which both letters were prepared), but was unable to proceed with the grievance process because, on the judge's findings, Dr Christos was unable or unwilling to cooperate in the grievance procedures, or at least in any meaningful or orderly way. In this scheme of events, and when the judge's reasons are read as a whole, I would not infer that the judge overlooked the later report or that his reasons imply an error of law on the question of foreseeability.
[55] For example, primary decision [567] - [571].
The fourth particular (par (d) of [24] above) cannot be accepted. The judge's reference to Koehler was to the effect that knowledge of the existence or prospect of stress in the work place itself is not of itself determinative of the question of whether there is a foreseeable risk of psychiatric injury. It is plain, when the judge's reasons are read as a whole, that his Honour was addressing the question of foreseeable risk with reference to Dr Christos and the particular circumstances of this case, and not some broader hypothetical workforce.
For these reasons, ground 1, and accordingly the appeal, should be dismissed.
Even if that conclusion were wrong, however, the appeal cannot succeed unless Dr Christos succeeds in establishing error with respect to the judge's other findings as to breach (ground 2) and then causation (grounds 3, 4 and 5).

Ground 2

Particular (a) of ground 2 asserts that the trial judge erred in law by misdirecting himself that a finding of bullying, harassment and victimisation was necessary in order to make a finding of breach of Curtin's duty of care, when he should have directed himself that such a finding was not necessary.
The judge did not make the error asserted. It was both necessary and appropriate for the judge to make findings as to whether Curtin had bullied, victimised or harassed Dr Christos. That was, as the judge correctly understood, one of the two primary complaints made by Dr Christos, reflected in par 12 of the amended statement of claim and 45 paragraphs of particulars of that paragraph. The judge was aware that the other limb of the appellant's case was an alleged breach of the duty of care arising out of a continuing failure by Curtin to address Dr Christos's grievances.[56] He considered and determined that case.[57] As noted later in these reasons, the judge considered in detail the reasons why, in 2003 and 2004, Curtin did not bring the grievance process to a conclusion.
[56] See, for example, the primary reasons [49], [63], [75], [76], [90], [137]; amended statement of claim, par 10.
[57] Primary decision [653] ‑ [672], [679].
As to particular (b) of ground 2, the judge did not make the error alleged. At the end of his reasons, the primary judge set out a summary of his findings. One of them was in these terms:
The grievance was not resolved within the timeframe proposed and Curtin was at fault. However, this fault occurred in 2002 and is time barred.[58]
[58] Primary decision [679] at dot point no 4.
That was a reference to the judge's earlier finding that in June 2002, Professor Lee said he was going to speak with Professor Caccetta and Professor O'Connor, but did not do so, and that such inaction was, in 2002, in breach of the grievance policy.[59] As Dr Christos's statement of claim complained of the failure to resolve his grievances in the period 20 February 2003 to 28 October 2004, the primary judge correctly concluded that the breach of the grievance policy by Curtin in 2002, in respect of Dr Christos's initial complaint, was not in and of itself an actionable claim by Dr Christos in the proceedings. That proposition was not disputed by senior counsel for Dr Christos in the appeal.[60]
[59] Primary decision [55], [161].
[60] Appeal ts 23 - 24.
On the other hand, the judge correctly recognised that Dr Christos could succeed if he was able to establish that a breach of a term of the contract or a breach of a duty of care on the part of Curtin occurred or continued in the period 20 February 2003 up to 28 October 2004, and also that such breach was a cause or made a contribution to his psychiatric disablement.[61] His Honour was not, however, satisfied that any breach in that period was established on the evidence.[62] Particular (b) of ground 2 has no merit.
[61] Primary decision [653].
[62] Primary decision [653] ‑ [672], [679].
Particular (c) of ground 2 also has no merit. There were two limbs in Dr Christos's case at trial; first, a complaint of failure to progress and deal with his grievances, and second, a complaint that Curtin and its staff bullied, harassed and intimidated him. In considering the second of those, the judge considered whether there was a course of conduct of bullying and harassment prior to 20 February 2003 which had continued thereafter.[63] That does not mean that the judge looked for a course of conduct involving only commission, as distinct from omission, when he was considering the other limb of Dr Christos's case, namely Curtin's alleged failure to progress his grievances.
[63] Primary decision [677] ‑ [678].
The judge considered in some detail the alleged breaches of Curtin in failing to deal with Dr Christos's grievances in the relevant period. The judge accepted that, from 20 February 2003 until Dr Christos's employment was terminated, the grievances did not proceed.[64] His Honour examined the evidence about the approach taken by Curtin, and its reasons for not responding to the grievances, in the relevant period from February 2003 to October 2004.
[64] Primary decision [657].
The judge's summary of his findings[65] included the following:
[65] Primary decision [679].
•Professor Lee suggested to [Dr Christos] that he should not return to teaching duties for the balance of the semester but concentrate on research.
•Apart from sporadic work, mainly on chapters of a book, [Dr Christos] has never returned to work at Curtin.
•Commencing from 2003 Curtin had acceptable reasons for not progressing the original or added grievances.
•[Dr Christos] was on long service leave. It was reasonable and did not amount to a breach of contract or negligence for Curtin to defer progress of the grievance until [Dr Christos] had returned to work.
•Outside the limitation period, [Dr Christos] and some Curtin staff contemplated appointment of an independent investigator. This did not occur but Curtin was neither in breach of contract or negligent.
•[Dr Christos] lodged a workers' compensation claim on 7 March 2003 and was certified unfit for work.
•Thereafter he remained unfit for work until his employment was terminated on 28 October 2004.
•It was not a breach of the pleaded duty of care for Curtin to decline to let [Dr Christos] undertake work related matters while he was certified as totally unfit for work.
…
•Curtin did not breach its duty of care to [Dr Christos]. The actions taken by Curtin over the relevant period were reasonable responses. For most of the period, Dr Christos was certified as unfit for work and Curtin reasonably exercised its duty of care by not permitting Dr Christos to work during the periods he was so certified.
More particularly, the judge's findings included the following:
(1)In September 2002, following complaints by a number of students, Professor Lee suspended Dr Christos from teaching.[66]
[66] Primary decision [3], [162], [176].
(2)Professor Lee's action in this respect was a reasonable and appropriate one.[67]
[67] Primary decision [56], [184].
(3)From 4 November 2002, Dr Christos was on sick leave and from 28 January 2003, Dr Christos was on long service leave (or a combination of long service leave and annual leave).
(4)On or about 24 February 2003, Dr Christos lodged a workers' compensation claim, coupled with a doctor's certificate certifying him unfit for work.[68]
[68] Primary decision [186] ‑ [190].
(5)In March 2003 senior staff of Curtin (Dr Cheong and the Grievance Resolution Officer, Mr McGinniss) were giving active consideration to whether the grievance process should be progressed in circumstances where Dr Christos was and had been certified unfit for work.[69]
[69] Primary decision [323].
(6)In this regard, some Curtin staff were in favour of the grievance process continuing while Dr Christos was certified as medically unfit for work, while others took a contrary view. For example, Mr McGinniss indicated that he thought the investigation should have commenced as soon as possible, while Professor Lee expressed concern that it would not be consistent with the duty of care owed to an employee on stress leave to progress matters that obviously involved, stress to the employer. The judge said that he was unable to conclude that the latter view was a breach of the duty of care or otherwise negligent.[70]
[70] Primary decision [328] ‑ [330]. See also [355] and [365].
(7)By about 12 June 2003, having received medical advice from Dr Terace on or about 6 June 2003 that it was in Dr Christos's interests to do so, Curtin determined that it should proceed with investigation of the grievance.[71]
[71] Primary decision [326] ‑ [328], [368] - [369].
(8)On 13 June 2003, an acting grievance resolution officer, Mr Ridley, then contacted Dr Christos to arrange a meeting in relation to Dr Christos's grievance case. In response, Dr Christos sent lengthy emails to Mr Ridley.[72] In an email, Dr Christos said that he was only prepared to talk to 'a completely independent legal investigator' and that the matters could no longer be resolved through the usual grievance procedures at Curtin.[73]
[72] Primary decision [371] ‑ [372]; GB vol 2, page 480.
[73] Primary decision [372].
(9)Mr Ridley reported to Dr Cheong. Dr Cheong wrote a detailed letter to Dr Christos on 20 June 2003 in which Dr Cheong:
(a)set out some of the history;
(b)stated that the university, at that stage, would not be prepared to accede to the request for an external investigator, giving reasons for that position;
(c)stated that the university was very keen to progress the investigation of the complaints; and
(d)asked Dr Christos to contact Mr Ridley.[74]
[74] Primary decision [375], exhibit 793.
(10)On 11 July 2003, Dr Christos telephoned Dr Cheong. The primary judge set out Dr Cheong's notes of that conversation, which his Honour evidently accepted to be accurate.[75] Among other things, in the course of the telephone conversation Dr Christos stated that he would not cooperate with any grievance inquiry while he was not being paid, and demanded that the university arrange for his grievances to be examined by an independent external investigator.
[75] Primary decision [376], exhibit 822.
(11)In July 2003, Dr Christos had still not prepared a comprehensive and coherent set of submissions setting out all of the grievances that he had at that time.[76]
[76] Primary decision [207].
(12)While Mr Ridley wanted the grievance to move forward, the issue as to whether Dr Christos regarded himself as willing to take part in the process was one which 'flowed to and fro' during July 2003.[77]
[77] Primary decision [377].
(13)On 14 October 2003 Mr Ridley sent a memo to Dr Christos enclosing possible terms of reference and saying that whether the complaints are dealt with in-house or externally, it would be necessary to define the terms of reference. The email also stated that Curtin was keen to progress the investigation of the various grievance issues and requested Dr Christos's thoughts on the proposed terms of reference.[78]
[78] Primary decision [380] - [381], exhibit 964.
(14)On 20 October 2003 Dr Christos responded saying that while he would very much like to sort out the grievance complaints, before he could take part in the process he first needs to be 'de‑stressed'.[79]
[79] Primary decision [382].
(15)By email dated 4 November 2003, Dr Christos's solicitors informed Curtin that Dr Christos 'was not fit for work or to pursue his "grievance complaint" at that time'.[80]
[80] Primary decision [77] at quoted paragraph 9.55, [78].
(16)On 17 November 2003, Mr Ridley met Dr Christos and a union representative. Mr Ridley's notes of the meeting, accepted by the primary judge, recorded that Dr Christos said he did not feel in a fit state to get involved in a full investigation of all his grievance issues, and his priority was to concentrate on his workers' compensation claim.[81]
[81] Primary decision [385] ‑ [386], exhibit 996.
(17)Mr Ridley did not hear from Dr Christos for several months, until he received a copy of a letter from Dr Christos to Ms Keenan dated 28 May 2004, which related to leave entitlements.[82]
[82] Primary decision [388].
(18)On 9 June 2004, Mr Ridley received an email from Dr Christos indicating that Dr Christos wished to lodge a fresh grievance complaint against Ms Keenan, Mr Jones and Professor den Hollander in relation to questions of leave entitlements.[83]
(19)After Dr Christos approached the Vice Chancellor, the Vice Chancellor wrote in the following terms:
I am puzzled by your claim that the University is somehow holding up the investigation of your grievance concerns. University officers have written to you on several occasions since June 2003 indicating that they were willing to assist you to reactivate the grievance process and to prepare the necessary documentation. They point out that, in the case of matters that have arisen since May 2002, it would be necessary to identify precisely which issues you wish to have included in any investigation and document these issues in the form of a full and coherent submission.
The Grievance Resolution Officer wrote to you on 14 October 2003 stating that the University wished to address without further delay the grievance issues you had raised and was willing to engage an independent external investigator. The Grievance Resolution Officer provided draft terms of reference for your consideration, as well as a list of the many grievance issues that might fall within the scope of the investigation.
However, on each occasion that the offer to re-start the grievance process has been made you have indicated that you did not feel well enough to deal with the overall grievance issues and wished to concentrate your attention on your Worker's Compensation claim. The University has respected your wishes in this matter and has therefore not sought to proceed with the grievance case. At this stage the University does not propose to move forward with the overall grievance case unless we receive notification from you that you are ready to become engaged in the grievance process and to assemble the necessary documentation to substantiate your claims.
In relation to your last point, the University is not prepared to continue your salary payments simply in order to allow you to participate in a grievance process. This would amount to an indefensible misuse of public funds and could not be countenanced. A number of University staff have raised grievance allegations at various times but their pursuit of any grievance claims has been undertaken in addition to their normal duties. Furthermore, it cannot be assumed that grievance allegations have substance until they have been properly investigated as part of the grievance process.[84]
(20)The primary judge accepted Mr Ridley's evidence that the grievance process became sidelined because of concerns about proceeding while Dr Christos was on sick leave and in a fragile state, and because of issues regarding the terms of reference for the investigation of the grievance.[85]
(21)The judge accepted as reasonable Curtin's position that there was a need for a comprehensive statement of all of Dr Christos's grievances.[86]
(22)The judge also evidently accepted evidence of Dr Cheong that Curtin was 'in a bind', given the concerns about Dr Christos's health and what would occur if the investigation proceeded and his condition deteriorated.[87]
(23)Dr Cheong expressed the view that progressing a grievance in accordance with the grievance resolution protocol was subordinate to the need to look after someone who was on sick leave.[88] The judge accepted that position as reasonable.[89]
[83] Primary decision [389].
[84] Primary decision [394], exhibit 1167.
[85] Primary decision [402] ‑ [411].
[86] Primary decision [431].
[87] Primary decision [423], read with [427].
[88] ts 1389.
[89] Primary decision [414], [427].

The judge, in the concluding section of his reasons, entitled 'The findings that Curtin is not liable', made a number of further findings, including the following:
(a)The predominant motive in Curtin's staff was that Dr Christos should not be asked to do any work‑related task while he was on leave. In the minds of relevant decision‑makers, this was out of a concern for Dr Christos who was, to their knowledge, undoubtedly in a fragile state.[90]
(b)While in hindsight the decision to suspend the grievance process pending the return of Dr Christos to employment may have been wrong, not every wrong decision is a negligent one.[91]
(c)Curtin's actions in failing to progress the grievance while Dr Christos was on leave was not a breach of its duty of care to Dr Christos nor a breach of any implied condition of employment.[92]
(d)Correspondence and emails demonstrate that Dr Christos kept expanding his grievances and adding new persons as the subject of his grievances each time he disagreed with those persons.[93]
(e)It was not unreasonable for Curtin to be uncertain from time to time as to what Dr Christos wanted.[94]
(f)At different stages Dr Christos rejected an independent investigator, and then insisted on an independent investigator. At times Dr Christos 'blew hot and cold' about participation in the grievance process, sometimes being unwilling to participate and other times wanting to have the process expedited.[95]
[90] Primary decision [659].
[91] Primary decision [661].
[92] Primary decision [662].
[93] Primary decision [663].
[94] Primary decision [669].
[95] Primary decision [666], [668].
Accordingly, with reference to detailed findings of fact, the judge resolved Dr Christos's claim that Curtin acted negligently or in breach of contract in failing, from 20 February 2003 to 28 October 2014, to progress or resolve Dr Christos's grievances.
Ground 2 should be dismissed. That also means that the appeal must be dismissed. For completeness, however, grounds 3, 4 and 5 are addressed below.

Ground 3

Ground 3, as with grounds 4 and 5, challenge the primary judge's conclusions on causation.
Ground 3 asserts, in substance, that the judge erred in law by applying the wrong test on causation, by focusing on an identification of the operative cause or seminal cause, rather than determining whether Curtin's failure to resolve Dr Christos's grievances was a cause of his psychiatric injury.
There are parts of the primary judge's reasons that refer to notions of 'operative cause', 'the cause', and 'seminal event'.[96]
[96] Primary decision [185], [637], [645], [647] ‑ [679] point 8.
However, when his Honour's reasons are read as a whole, it cannot be accepted that the judge made the error alleged, namely that he failed to consider whether Curtin's breach was a cause that materially contributed to the occurrence of Dr Christos's psychiatric injury. It was not in dispute that that was the test to be applied.[97] The primary judge correctly identified the legal test for establishing causation when setting out his findings under the heading 'The findings that Curtin is not liable'. His Honour stated that:[98]
[Dr Christos] can only succeed if he is able to establish that any breach of the implied terms or failure of duty of care continued beyond 20 February 2003 and also that the breach or failure was a cause or made a contribution to [Dr Christos's] psychiatric disablement. (emphasis added)
[97] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514, 519; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 123 ‑ 124.
[98] Primary decision [653].
His Honour said that he was not able to find that Curtin's actions were either a breach or 'a' cause.[99]
[99] Primary decision [654].
Moreover, in his Honour's summary of his findings,[100] his Honour found that:
The actions of Curtin's staff during the period 20 February 2003 to October 2004 did not materially cause or exacerbate [Dr Christos's] psychiatric disability. (emphasis added)
[100] Primary decision [679] point 8 on page 183.
For these reasons, ground 3 has not been established.

Overview of medical issues in relation to grounds 4 and 5

Grounds 4 and 5 challenge findings of fact in relation to the causation of Dr Christos's psychiatric condition.
Before addressing them in detail, it is convenient to outline Dr Christos's claims with respect to his psychiatric condition and provide an overview of the judge's findings as to the medical evidence.
As noted earlier, Dr Christos's case was that Curtin's breaches had caused him to suffer an 'adjustment disorder with mixed anxiety and depression', and a 'major depressive disorder and anxiety disorder'.
In the amended statement of claim, Dr Christos alleged that:
(a)he lodged the workers' compensation claim on 7 March 2003 for work stress and anxiety;[101]
(b)by mid or late 2003, he had started to develop depression;[102]
(c)on 11 August 2003, Dr Risbey, a psychiatrist, diagnosed Dr Christos as having an adjustment disorder with mixed anxiety and depressed mood;[103] and
(d)by mid‑2004, Dr Christos's depression had deteriorated and he had to seek assistance from a psychiatrist, Dr Manners.[104]
[101] Primary decision [76(t)].
[102] Primary decision [76(w)].
[103] Primary decision [76(kk)].
[104] Primary decision [76(x)].
There was medical evidence from both general practitioners and from psychiatrists. The general practitioners called to give evidence were Dr Choy, Dr Bill and Dr Bajrovic.[105]
[105] Primary decision [432].
Dr Choy wrote medical certificates for Dr Christos, in relation to his absences from work in the period 24 February 2003 up to about July 2003, to the effect that Dr Christos had work‑related 'stress and anxiety'.[106] On 28 July 2003, the form of the medical certificates changed because the workers' compensation claim had by then been rejected. Around this time, Dr Choy had received a report from Dr Terace.[107] On 4 November 2003, Dr Choy wrote to Dr Christos's solicitors and stated, amongst other things, that Dr Christos had a stress condition that had been diagnosed as an adjustment disorder and that resolution of his grievances with Curtin was likely to be necessary prior to significant improvement in his condition.[108] Dr Choy also said, in re‑examination, in effect, that what is stressful to a person with an adjustment disorder will depend on the personal experience of each individual with the disorder, and that he left it up to Dr Christos to determine what was stressful to him.[109]
[106] Primary decision [433] - [448].
[107] Primary decision [449].
[108] Primary decision [450].
[109] Primary decision [453].
Dr Bill was also a treating general practitioner of Dr Christos. Dr Bill, in cross‑examination, concurred with the view that Dr Christos's adjustment disorder had developed either by June or September 2002.[110] The judge observed that Dr Bill agreed that from June/September 2002 through to August 2004, 'although [Dr Christos's] symptoms might have fluctuated from time to time he continued to have that disorder and [that disorder] had eventually morphed into a major depressive disorder'.[111]
[110] Primary decision [475].
[111] Primary decision [476].
Dr Bajrovic was also a general practitioner. He did not claim special expertise in the diagnosis or management of stress‑related disorders, and considered that matters of that kind should be left to those with specialist qualifications in psychiatry.[112]
[112] Primary decision [481], [482].
In relation to the psychiatric evidence, Dr Christos had been examined by four psychiatrists. First, Dr Terace examined Dr Christos on 16 May 2003.[113] Next, Dr Christos was examined by Dr Risbey in July and August 2003.[114] The following year, Dr Christos consulted Dr Manners. Dr Christos first saw Dr Manners on 25 August 2004, and Dr Manners was thereafter Dr Christos's treating psychiatrist.[115] On 14 December 2006, Dr Christos was examined by Dr Spear.[116] Dr Terace also examined Dr Christos again on 24 August 2009 and 22 November 2010.[117]
[113] GB 1226.
[114] GB 626.
[115] Primary decision [528].
[116] GB 974.
[117] Primary decision [563]; GB 998, 1024.
The judge accepted Dr Risbey's diagnosis of adjustment disorder and the nature of Dr Christos's symptoms, 'those matters not being in serious dispute'.[118] However, the judge expressed a reservation that a degree of partisanship may have coloured Dr Risbey's ultimate opinion, and that he displayed opinions which went beyond psychiatric opinions.[119] The judge said that where Dr Risbey's opinions differed from those of Dr Terace, he preferred Dr Terace's 'more objective evidence'.[120]
[118] Primary decision [490], [491].
[119] Primary decision [498], [505], [523].
[120] Primary decision [523].
Dr Manners, in a report to Dr Bill dated 30 August 2004, said that Dr Christos appeared to have a major depressive disorder.[121] Dr Manners also said, in a report dated 27 October 2006, that when he was first consulted by Dr Christos, Dr Christos had an adjustment disorder with anxious and depressed mood, but that he 'now' (in October 2006) had features of a major depressive disorder with associated anxiety.[122]
[121] Primary decision [529].
[122] Primary decision [533].
The judge observed that Dr Manners was, on occasion, 'snippy' with the cross‑examiner.[123] The judge also said:[124]
Dr Manners insisted that [Dr Christos] had the depressive disorder before he was dismissed [ie, before 28 October 2004]:
'He was perhaps in a major depressive disorder at times with partial remission, but he would go back into a major depressive disorder from time to time when there were various stresses, such as his dismissal.' (emphasis added)
[123] Primary decision [553].
[124] Primary decision [554].
Dr Spear, who saw Dr Christos in December 2006, agreed with the diagnosis of Dr Manners that Dr Christos then had a major depressive disorder.[125]
[125] Primary decision [525]; GB 974 - 981.
The primary judge accepted the evidence of Dr Terace, and preferred it to that of Dr Risbey and Dr Manners.[126] In relation to Dr Terace, the judge said that he was a thoughtful witness who responded to questions with at times lengthy explanations. The judge said that those explanations helped him to understand Dr Terace's reasoning process, and the judge said that he gained considerable understanding from Dr Terace. The judge found Dr Terace to be an impressive witness.[127]
[126] Primary decision [523], [581], [610].
[127] Primary decision [610].
In his report of 26 June 2003, Dr Terace said that Dr Christos had an adjustment disorder, which had arisen on or about 2 September 2002, following the receipt of the 14 complaints by students, and his suspension from duty.[128]
[128] Primary decision [570, pars 2.1, 5.2].
In his report of 24 August 2009,[129] Dr Terace expressed the opinion that Dr Christos's previous adjustment disorder had developed into a 'major depression, chronic, of at least moderate severity'.[130] (In these reasons, the term for that condition will be abbreviated and it will referred to as the 'depression disorder'.) Also, in that report, Dr Terace confirmed that the initial adjustment disorder was the product of disciplinary matters (in September 2002).[131]
[129] Exhibit 1332; GB 997.
[130] Primary decision [573.6]; GB 1006.
[131] Primary decision [573, par 6.1.4]; GB 1006.
Dr Terace also said that the most significant factor explaining the change from adjustment disorder to major depression was the termination of his employment (on 28 October 2004).[132] Other factors included his past, ongoing and prospective litigation. This included his workers' compensation claim, his attendance at WorkCover, his attendance at a conciliation meeting, and his lack of success in his claim for wrongful termination, and his pursuit of the primary proceedings.[133] His 'preoccupation' (in the sense of 'fixation' and 'obsession') with work‑related difficulties and former industrial grievances was also a contributing factor.[134] The breakup of his marriage, and the end of another, subsequent, relationship were also contributing factors.[135] His prior adjustment disorder was also a contributing factor to his depression disorder.[136]
[132] Primary decision [574] - [575].
[133] Primary decision [573], [574] ‑ [575], [606]; ts 764 ‑ 766, 907 - 908, 912 - 913.
[134] Primary decision [573]; ts 898.
[135] Primary decision [578], [596] - [597].
[136] Primary decision [573.6.1.4].
Dr Terace did not, however, regard the absence of resolution of his industrial grievances prior to 28 October 2004 as being causal of Dr Christos's psychiatric condition, although it was 'within the realm of possibilities'.[137]
[137] Primary reasons [595]; ts 832.
As to when Dr Christos's depression disorder first developed, Dr Manners 'insisted' that it had developed prior to 28 October 2004 (see [78] above). However, the judge said:[138]
At the conclusion of Dr Manners' evidence I was left in a state of confusion about his diagnosis of depressive disorder and adjustment disorder and their interaction. Dr Risbey and Dr Terace were much clearer in their description of adjustment disorder referable to [Dr Christos].
[138] Primary decision [562].
Accordingly, it cannot be said that the judge accepted Dr Manners's evidence on the topic of when the depression disorder first emerged. When the judge's reasons are read as a whole, including with reference to the foregoing observation, his Honour was evidently of the view that the only psychiatric disorder which Dr Christos had established that he had in the period 20 February 2003 to 28 October 2004, was the adjustment disorder.
Dr Christos in this appeal nevertheless said that Dr Terace accepted Dr Manners's opinion that the depressive disorder had been established before 28 October 2004.[139] Dr Christos relies on the following exchange in the cross‑examination of Dr Terace:[140]
[Counsel for Dr Christos]: Can I now refer you to exhibit number 1411. ‑‑- This is a letter from Dr Ross Manners, psychiatrist … Who was appointed as Dr Christos's treating psychiatrist to Dr Bill, the referring general practitioner, 13 August. …
Do you know who Dr Ross Manners is? --- Yes he's a - I don't know him personally, only be reputation. He is a consultant psychiatrist and a member of the college of psychiatrists.
A senior psychiatrist with 40 years of experience or thereabouts in psychiatry? --- Forgive me, no. I don't know anything about Dr Manners.
You see that, in that letter, back to the GP, Dr Manners diagnoses a major depression as at 9 August 2004? --- Yes. That's correct.
Thank you. Can I take that back, thank you.
[139] Appellant's written submissions, par 65(e); WB 21.
[140] ts 894 - 895.
The foregoing exchange cannot be treated as an acknowledgement by Dr Terace that Dr Christos had the depression disorder prior to his dismissal on 28 October 2004.

Ground 4

Ground 4 alleges, in substance, that the judge erred in his findings to the effect that even if Curtin breached an obligation to deal expeditiously with Dr Christos's grievances, any such breach made no difference to his condition, because resolution of his grievances would, of itself, not have assisted.[141]
[141] Primary decision [63], [64], [91], [636], [661], [679] point 5.
The judge said:[142]
Even if Curtin's actions amounted to a breach of contract or breach of a duty of care, it does not follow that such a breach will necessarily lead to a recovery of damages. From the language of [Dr Christos's] witness statements, and his responses in searching cross‑examination, together with his voluminous correspondence which speaks for itself, it is more probable than not, in fact highly probable, that it was not Curtin's slowness or lack of resolution that caused any of [Dr Christos's] damage but the lack of a resolution which he favoured, one which completely exonerated him.
[142] Primary decision [91].
His Honour later said:[143]
I am satisfied from this evidence that even if Curtin has breached its obligation to expeditiously deal with [Dr Christos's] grievances, it would have made no difference to his condition. In other words, any breach by Curtin is not the cause of his ongoing disability.
That is because the evidence abundantly illustrates that [Dr Christos] would not be satisfied with the resolution of the grievance. Only the resolution of the grievance in his favour would be sufficient. So deeply is his belief in the correctness of the complaints that he believes that his grievances would inevitably be upheld. (emphasis added)
[143] Primary decision [63] ‑ [64].
Dr Christos submits that there was no evidentiary basis upon which the court could make these findings. Further, Dr Christos submits that such a conclusion could only be based on speculation as to what might have happened because there was in fact no progression towards resolution of any grievance of Dr Christos.[144] The latter submission does not assist Dr Christos. Causation questions routinely involve determination of a past hypothetical question as to what would have occurred had a duty been performed rather than breached.
[144] Appellant's submissions [61].
As to the contention that his Honour's findings lacked an evidentiary foundation, as noted earlier, the primary judge said the findings were drawn from Dr Christos's evidence, including his written statement, his evidence in cross‑examination, and his contemporaneous written communications.[145] Further, his Honour's views in that regard were confirmed by reference to evidence from Dr Manners.[146] Dr Manners, in cross‑examination,[147] and re‑examination,[148] gave evidence to the effect that Dr Christos was not simply looking for a resolution of his grievances, but was rather looking for a resolution of his grievances in a way that was favourable to him. Dr Manner's report referred to the prospect of Dr Christos regaining his mental health to some degree 'should his grievances be dealt with in a manner that is acceptable to Dr Christos.[149] His Honour quoted the following passage of cross‑examination of Dr Manners:[150]
Well you have offered the opinion should grievances be dealt with in a way that is acceptable to Dr Christos, he may appear to regain his mental health to some degree. What did you have in mind - was the way in which his grievances could be dealt with if he was not employed by Curtin?---Well, basically that they would accept that he a genuine case. As I recall, he - he, his grievances were made while he was there and if they were address in a way satisfactory to him, he would feel somewhat better.
By what process would this resolution occur?---By the process of he having a, the grievances settled that would take a lot of worry and stress from him and his anxieties would certainly lessen.
You have also said in a way that is acceptable to Dr Christos?---Yes.
Was that really saying then what you said earlier when you gave evidence that he may improve if this litigation is resolved in his favour?---To some degree, yes.
But it would be different if it wasn’t resolved in his favour?---Well, his psychiatric disorders would continue on.
Was he a patient who, up to that point, from what he said to you about his cases, someone who was looking to a resolution that was favourable to him rather that a resolution?---Yes. He was looking for a resolution favourable to him because he felt very, very strongly that he had been wronged (ts 643). (emphasis added)
[145] Primary decision [62] ‑ [63].
[146] Primary decision [557], [559].
[147] ts 643.
[148] ts 648.
[149] Primary decision [544], report, par 11.
[150] Primary decision [557]; ts 643.
The judge referred to this and similar evidence given by Dr Manners and said:[151]
It does confirm the view that I had independently reached that it was not the resolution of the grievances that concerned and stills concerns [Dr Christos] but the resolution of the grievances in his favour which is a different thing. (emphasis added)
[151] Primary decision [561].

Dr Terace also gave evidence on this point. He said that if there were no other factors, and if his industrial grievances had been resolved quickly 'and had he been satisfied' with the resolution, then his adjustment disorder 'probably would have resolved faster than otherwise'.[152] Dr Terace said, however, that there were other factors, and explained the position in the following exchange in cross‑examination:[153]
[Dr Terace]: In this case there were other factors which continued to condition, even - putting aside the duration and complexity of the industrial grievance procedure, and the other factors that had been contributory were multiple. The end of the marriage … the lodgement of the workers' compensation claim, which is distressing, then its failure, then the industrial relations proceedings, then the litigation, and then the failure of a further relationship …
[Counsel for Dr Christos]: I just want you to focus on this point around about June of 2003. We know what the stresses are. There's the work‑related grievances that hadn't been dealt with, there's the being stood down, and he has been cleared, and come back to being able to at least do research and so on. And there are other work‑related matters that we have gone through carefully in your report. So just say - I want you to freeze frame as at June 2003, had his grievances been addressed. One way or another, would he have recovered and been able to go back to full time work?
[Dr Terace]: That is very difficult to answer. Precisely because the condition began, based on his history, with the complaints [of the students] and his suspension, and I do not know how long the adjustment disorder would have lasted in the absence of the other factors including his marriage. I think that if the industrial grievances had been resolved to his satisfaction much faster … he would have been in a better psychological position, and would have improved.
…
I think that had the process been resolved to his satisfaction, had it occurred expeditiously, had he not believed that he was victimised, harassed, bullied or treated unreasonably, then the condition probably would have resolved faster. (emphasis added)
[152] ts 839.
[153] ts 839 - 840.
Dr Terace said, in criticism of Dr Risbey's report:[154]
I agreed with the position that resolution of the industrial grievance is a significant factor in facilitating further improvement, but there were other matters which were also substantial in the causation and continuation of the condition which I believe required additional attention from the psychotherapeutic standpoint, such that the resolution of the grievance alone, in itself, would not, in my opinion, have caused resolution of the condition.
…
[It would probably have] caused a reduction in some symptoms, but, on its own, would be insufficient given the other stressors described in this case and the complex interaction between this gentleman's personality and those other stressors. (emphasis added)
[154] ts 888.
In light of the foregoing, the contention that the judge's findings on this point lacked evidentiary foundation cannot be accepted. Ground 4 should be dismissed.

Ground 5

The arguments in support of ground 5 are set out in Dr Christos's written submissions in the following terms:
62The trial judge ought to have found that the evidence of Dr Manners and Drs Choy, Bill and Spear and Bajrovic led to the conclusion that the failure to deal with the grievances contributed to the injury.
63That evidence comprised:
(a)Dr Manners' report dated 27 [October] 2006 in which he reported that 'Undoubtedly the problems he had with the administration at Curtin University following lodgement of his complaint about a particular member of staff contributed significantly to the onset of his major depressive disorder';
(b)Dr Manners' evidence, at Ts 626: 'The cause of his psychiatric experience was the adverse experiences from lodging a complaint against more senior persons in his department and the consequences of that;
(c)Dr Bill's evidence that there were 'grievances he had with regard to other members of staff … which he had attempted to have dealt with and he felt that these were not being dealt with', and [Dr Christos's] 'symptoms of depression and anxiety had worsened' since 10 June 2002 'because the problems persisted' and exhibit 1409;
(d)Dr Bill's evidence referring to the 'ongoing lack of resolution of his grievances' as one of the 'main' factors being a 'stressor';
(e)[Dr Christos's] Closing Submissions [1051], dot point 6 [in relation to Dr Manners's report of 27 November 2006], [1056] [Dr Manners's oral evidence, ts 617, 625 ‑ 627], [1030] [Dr Bill's oral evidence, ts 474 ‑ 475], [1031] [Dr Bill's oral evidence, ts 478 ‑ 479];
(f)Dr Choy exhibits 642, 655, 665, and 973; T370‑371, 372‑376, -378, 381 ‑ 383, 386, and 396;
(g)Dr Spear exhibit 1327, T 925‑927, and 930.
(h)Dr Bajrovic exhibit 870; Terace T 873.
64His Honour gave no specific or inadequate reasons for rejecting the evidence of those medical practitioners.
65The trial Judge unreasonably disregarded Dr Terace's evidence in cross‑examination that the way in which the grievance procedure was dealt with contributed to the continuation of the psychiatric condition. It comprised the following:
(a)'I think it is reasonable to argue that he was upset about the - that the failure of the investigation to proceed and that he found that matter distressing … his preoccupations with his industrial grievances was a factor in the initiation and the onset of his psychiatric condition …';
(b)'I think that if the industrial grievances had been resolved to his satisfaction much faster that he would have been in a better psychological position, and would have improved';
(c)'he would have been less distressed had he not had to confront this process and any adjustment disorder present would be probably less severe … as a product of such a process being resolved expeditiously and fairly, …';
(d)'he was upset about the matters at hand and wished them to be resolved expeditiously'
(e)Dr Terace accepted by early August 2004 [Dr Christos] had major depression and this was before any steps were taken to terminate [Dr Christos's] employment. (footnotes omitted)
In relation to par 65 of Dr Christos's submissions referred to above, in the footnotes he referred to the oral evidence of Dr Terace at ts 831 ‑ 832, 840, 855 ‑ 856, 858 and 894 ‑ 895.
This ground should be dismissed.
First, for the reasons given above, it was open to the judge to conclude that even if Curtin had taken adequate steps (assuming breach for present purposes) to resolve Dr Christos's grievances in the period 20 February 2003 to 28 October 2004, that would not in itself have made any material difference to his psychiatric condition, because only a resolution satisfactory to him would have made any difference to his psychiatric state at the time. In light of that finding, ground 5 cannot succeed as there is no suggestion that had the grievance process been completed within the relevant period, Dr Christos's grievances would have been resolved to his satisfaction. The following matters confirm that conclusion.
Secondly, there was no error in the judge preferring expert psychiatric evidence in relation to psychiatric matters, over the evidence of general practitioners such as Dr Bill, Dr Chong and Dr Bajrovic. As noted earlier, Dr Bajrovic expressly said that he did not have special expertise in the diagnosis or management of stress‑related disorders.
Thirdly, the evidence of Dr Manners to which Dr Christos refers was in general terms, and was not directed to the specific question of whether delay in resolution of the grievances from 20 February 2003 to 28 October 2004 materially contributed to Dr Christos's psychiatric injury.
Fourthly, the judge gave his reasons for accepting the evidence of Dr Terace (see [80] above). Even if this court were inclined to think that Dr Manners's evidence was more 'impressive'[155] than that of Dr Terace (and, based on the transcript, that is a doubtful proposition), this court could not prefer the evidence of Dr Manners in order to overturn the judge's finding on causation when there is no basis for concluding that the judge palpably misused his advantage in resolving the conflicts of expert evidence at trial.[156]
[155] In the language used in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179.
[156] Abalos; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
Fifthly, and related to the previous point, the judge heard and saw Dr Spear give evidence. Dr Spear's report[157] contained no discussion of the factors which may have caused Dr Christos's psychiatric condition, although his report did refer to '[s]eparation, not working, stress of medicolegal process, financial pressure' (ie, without mention of any failure to resolve Dr Christos's grievances).[158] In his oral evidence,[159] Dr Spear accepted and confirmed that he had not reported on causation. Having considered his report and the whole of his oral evidence, it cannot be accepted that the judge was not entitled to prefer the evidence of Dr Terace.
[157] Primary decision [524]; GB 974 - 981.
[158] Primary decision [524].
[159] ts 930, 932 - 933.
Finally, the evidence of Dr Terace to which Dr Christos refers in par 65 of his written submissions (see [98] ‑ [99] above) does not assist him. The evidence referred to in par 65(a) is, in context, a reference to Dr Christos being distressed by Curtin's decision not to pursue the grievance process whilst he was absent on sick leave. The relevant passage of evidence, read as a whole, is to the effect that Dr Terace did not regard the absence of resolution of the grievances as causal, but accepted that it was 'within the realms of possibilities'.[160] That evidence does not rise to the point where this court could say that the judge erred in concluding that the absence of resolution of grievances in the period 20 February 2003 to 28 October 2004 in fact made a material contribution to the nature or duration of, or materially exacerbated, Dr Christos's adjustment disorder, or was a cause of his subsequent depressive disorder.
[160] ts 831 - 832.
The evidence referred to in Dr Christos's submissions in par 65(b) has been referred to in ground 4. It serves to confirm the judge's conclusion on causation.
In relation to the matters referred to in pars 65(c) and (d) of Dr Christos's written submissions, the following may be noted. Dr Terace said that 'stress' is itself a 'vague' term which he did not consider, on its own, to be either a symptom or evidence of a psychiatric condition, or a cause of a psychiatric condition.[161] At one point, Dr Terace's evidence was to the effect that if other stress factors were ignored, his adjustment disorder would probably be less severe if the process were resolved expeditiously and fairly. The answer was given in response to a question to Dr Christos's counsel, specifically asking him to ignore any other factors.[162]
[161] ts 845 - 846.
[162] ts 855.
That evidence does not assist Dr Christos in this appeal as any conclusion on causation needed to take into account the whole of the evidence as to the causative factors of his psychiatric condition. Moreover, this aspect of Dr Terace's evidence is to be considered in light of his evidence as a whole. That included his evidence to the effect that the ongoing significance of one stressor can be influenced by other events, and some events may produce transient distress which may be overtaken by more significant stressors over time.[163] Whether one stressor leads to the continuation (or exacerbation) of Dr Christos's psychiatric condition cannot be assessed in isolation from other events that were or may have been stressors.[164]
[163] ts 858.
[164] ts 860.
Further, Dr Terace said that the lodgement of the workers' compensation claim was a substantial stressor which probably 'overwhelmed' the relevance of the recurrent transient distress caused by involvement in the process, or lack of process, for the resolution of Dr Christos's complaints, or at least Dr Christos's interpretation of that process.[165]
[165] ts 865.
In relation to the matter referred to in par 65(e) of Dr Christos's written submissions, for the reasons given earlier, Dr Terace did not accept that Dr Christos had major depression by early August 2004.
For these reasons, ground 5 has not been established.

Conclusion

The appeal should be dismissed.

MITCHELL & BEECH JJA: The relevant background is explained in the reasons of Murphy JA. Subject to what follows, we agree with his Honour's reasons for dismissing this appeal.

Elements of Dr Christos' cause of action

The critical period in this case is between 20 February 2003 and 28 October 2004. 20 February 2003 was the date six years prior to the commencement of the primary proceedings and is critical for limitations purposes. 28 October 2004 was the date of the termination of Dr Christos' employment with Curtin.
Dr Christos' case, as explained on appeal, depended upon establishing all of the following four elements of a cause of action in negligence:[166]
1.In the relevant period from 20 February 2003 to October 2004, a reasonable person in Curtin's position would have foreseen a risk, which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos' grievances (lodged in 2002 and subsequently) could cause or aggravate a psychiatric injury in Dr Christos.
2.In order to avoid that risk of psychiatric injury, a reasonable person in Curtin's position would, in the relevant period, have progressed and sought to resolve Dr Christos' grievances in accordance with the Grievance Resolution Policy.
3.In the relevant period, Curtin failed to progress and seek to resolve Dr Christos' grievances in accordance with the Grievance Resolution Policy.
4.That failure, in the relevant period, to progress and seek to resolve Dr Christos' grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.
[166] Appeal ts 17 ‑ 19.
In our view, on the primary facts found by the trial judge, Dr Christos' established the first, but not the second and fourth, of these elements. As to the third element, the fact that Curtin did not progress the grievances in accordance with the Policy during the relevant period did not involve any breach of a duty of care, as there were good reasons for not doing so.

Foreseeability

Our point of departure from Murphy JA concerns ground 1 which, as particularised, contends that the trial judge applied the wrong test for determining whether the risk of aggravation of a psychiatric injury was foreseeable. In our view, the trial judge's reasons do not address the critical question, which is whether a reasonable person in Curtin's position would have foreseen a risk, which was not far‑fetched or fanciful, that its conduct in dealing, or not dealing, with Dr Christos' grievances could cause or aggravate a psychiatric injury in Dr Christos.
The trial judge found that, on 26 June 2003, Dr Terace made a report for Curtin's solicitors and insurer in relation to Dr Christos' psychiatric state.[167] That report indicated that Dr Christos was suffering from a psychiatric illness, namely an adjustment disorder, contracted in September 2002 when formal complaints about Dr Christos were received and he was suspended from teaching duties. The report also recorded statements by Dr Christos to the effect that inaction on his grievances was causing him stress. A proper assessment of what a reasonable employer in Curtin's position would have foreseen in the particular circumstances relating to Dr Christos must take account of this specific psychiatric advice which Curtin had received.
[167] Primary decision [567] ‑ [570]; Exhibit 1418 (Green AB 1225 ‑ 1235).
The trial judge does not expressly address the impact which Dr Terace's report of 26 June 2003 would have on a reasonable employer's perception of the risk that its dealing with Dr Christos' grievances could aggravate his existing psychiatric condition. The absence of that discussion strongly suggests that the analysis was not undertaken.
That suggestion is reinforced by the trial judge's comment[168] that the state of the evidence had parallels with Koehler v Cerebos (Aust) Ltd.[169] In Koehler, a claim in negligence, relating to a psychiatric injury of which the plaintiff's work was a cause, was dismissed on appeal to the Full Court of this court. It was dismissed on the basis that 'in the absence of external signs of distress or potential injury', the risk of psychiatric injury to the plaintiff was not reasonably foreseeable.[170] In the High Court, the plurality identified the central inquiry as whether, in all the circumstances, the risk of the employee sustaining recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far‑fetched or fanciful.[171] The plurality noted:
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. … [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned. [35] (citations omitted)
Koehler was decided on the basis that the employer had no reason to suspect risk to the plaintiff's psychiatric health in circumstances which included that, when the plaintiff became sick, she and her doctor thought that the illness was physical not psychiatric.[172] By contrast, in the present case Dr Terace's report put Curtin on notice that Dr Christos was suffering from psychiatric illness which had been triggered by events at work.
[168] Primary decision [640].
[169] Koehler v Cerebos (Aust) Pty Ltd [2005] HCA 15; (2005) 222 CLR 44.
[170] Koehler [17].
[171] Koehler [33].
[172] Koehler [41].
The only point at which the trial judge explained why he found the risk not to be foreseeable was in the following passage of his Honour's reasons:
I find that Curtin through its staff did not bully, victimise or harass the plaintiff. Whether there is a breach of a duty of care must depend on a finding that Curtin's responses to the plaintiff were appropriate and, in the circumstances, reasonable. In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable. [643]
Here the conclusion as to foreseeability is connected with the bullying issue, and whether Curtin's responses were appropriate.
The passage we have just set out was evidently the primary judge's conclusion on whether Dr Christos had met the requirement identified by his Honour in [635] of proving that the risk of psychiatric injury was foreseeable. The primary judge's summary of findings[173] includes an assertion that the risk that Dr Christos might develop or exacerbate a psychiatric disorder or illness was not reasonably foreseeable by Curtin. However, there is no further reasons in support of that assertion, beyond what may be found in [635] ‑ [643] of the reasons.
[173] Primary reasons [679].
When the trial judge's reasons are considered as a whole it does not appear that he addressed the critical issue of foreseeability in the manner required by Koehler. The trial judge did not address whether there was a reasonably foreseeable (in the sense of not far‑fetched or fanciful) risk that Curtin's conduct in dealing with Dr Christos' grievances would cause or aggravate a psychiatric injury, having regard to what Curtin knew about Dr Christos' psychiatric state.
The parties agreed that, if error of principle were established, this court should determine for itself whether the risk was reasonably foreseeable.[174]
[174] Appeal ts 32, 62 ‑ 63.

In our view, once Dr Terace's report of 26 June 2003 was received, a reasonable person in Curtin's position would have foreseen a risk that its conduct in dealing, or not dealing, with Dr Christos' grievances could aggravate his existing psychiatric condition. A lay person reading that medical report would have appreciated a real, and not far‑fetched or fanciful, prospect that conduct in dealing, or not dealing, with Dr Christos' grievances could aggravate his diagnosed adjustment disorder. On that basis, the first element of Dr Christos' cause of action in negligence, outlined above, was established on the primary facts found by the trial judge.
For these reasons we would uphold ground 1. However, success on that ground does not mean that Dr Christos ultimately succeeds in the appeal. He must still succeed in relation to the other critical elements of his cause of action in negligence.

Reasonable response to the foreseeable risk

The facts relevant to determining what a reasonable person would have done are set out at [56] of Murphy JA's reasons. On those facts a reasonable person in Curtin's position would have been concerned at whether progressing the grievance resolution process might aggravate Dr Christos' psychiatric condition, particularly if it resulted in an outcome with which Dr Christos was not satisfied. At the same time, a reasonable person in Curtin's position would have recognised that defining the precise scope and content of Dr Christos' grievances was a necessary first step in resolving them. Dr Christos agreed that in July 2003 he had never prepared a comprehensive cohesive submission that set out all of his grievances at that time.[175] Dr Christos was effectively unwilling to engage in the process of delineating his complaints, and indicated that he was not fit for work. In all of those circumstances, a reasonable employer in Curtin's position would not have attempted to complete the grievance resolution procedure during the relevant period. That would be so even though the hypothetical reasonable employer would foresee a risk that not progressing Dr Christos' grievances might itself aggravate his psychiatric condition.
[175] Primary decision [207]
Senior counsel for the appellant recognised that the grounds of appeal as particularised did not attack any of the findings referred to at [56], and that any challenge to these factual findings would require an amendment to the grounds of appeal.[176] Counsel did not apply to amend the grounds of appeal.
[176] Appeal ts 35 ‑ 37.

Causation

Even if the first, second and third elements of Dr Christos' cause of action were established, the fourth element (causation) was not established. Dr Christos' argument on that element fails on the trial judge's finding that only a resolution which Dr Christos favoured, and which completely exonerated him, would have made a difference to his psychiatric condition.[177] That factual finding is challenged by ground of appeal 4. However, senior counsel for the appellant effectively accepted that evidence led at trial[178] left it open to the trial judge to make this finding.[179] That finding is fatal to the fourth element of Dr Christos' cause of action identified above. If:
1.only an outcome which satisfied Dr Christos would have avoided the risk of aggravating a psychiatric injury; and
2.the evidence did not establish that the outcome would probably have satisfied Dr Christos if the grievance process had concluded,
then the failure to undertake the grievance process has not been shown, on the balance of probabilities, to have materially contributed to the Dr Christos' psychiatric injury.
[177] Primary decision [63] ‑ [64], [91]
[178] Which is referred to at [93] ‑ [96] of Murphy JA's reasons.
[179] Appeal ts 41 - 43.

Disposition of grounds 2 ‑ 5

Against that background, we agree with Murphy JA, for the reasons which his Honour gives, that none of grounds of appeal 2 ‑ 5 is made out. The appeal must therefore be dismissed.