Darma v Claremont Connections Pty Limited

[2021] NSWDC 509

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Darma v Claremont Connections Pty Limited [2021] NSWDC 509

Hearing dates:

17 August 2021
18 August 2021
19 August 2021
20 August 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Jurisdiction:

Civil

Before:

Coleman SC DCJ

Decision:

1 Verdict and Judgment for the defendant.

2 The plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords:

Torts – Negligence – Work Injury Damages – Claim for Common Law Damages – Leave to Proceed under s 151D(2) Workers Compensation Act 1987 (NSW) – Unpleaded Claim of Estoppel – Issue Estoppel – Whether the Defendant is Estopped in the Subject Proceedings as a Result of a Determination of the Plaintiff’s Statutory Entitlements Made by the Workers Compensation Commission by Consent – Whether the Plaintiff has Discharged its Onus – Whether the Plaintiff Was Harassed and/or Bullied

Legislation Cited:

Workers Compensation Act 1987 (NSW) ss 4, 9, 9A, 33, 60, 66, 151D, 151D(2)

Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 78, 288, 294, 315, 316, 318, 319, 325

Cases Cited:

Blair v Curran (1939) 62 CLR 464

Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853

Ekes v Commonwealth Bank of Australia [2014] NSWCA 336

Gower v State of New South Wales [2018] NSWCA 132

Nguyen v Tran [2018] NSWCA 215

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213

Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387

Texts Cited:

Gageler J, Evidence and Truth (2017) 13 TJR 1

Category:

Principal judgment

Parties:

Mr Kosim Darma (Plaintiff)
Claremont Connections Pty Limited (Defendant)

Representation:

Counsel:
Mr W Nicholson (Plaintiff)
Ms K Balendra (Defendant)

Solicitors:
McDonnell Schroder Solicitors (Plaintiff)
Turks Legal (Defendant)

File Number(s):

2020/55443

Publication restriction:

N/A

Judgment

BACKGROUND

1. Mr Kosim Darma (the plaintiff, who was also referred to in the proceedings as “Nick”) commenced work with the defendant in February 2014. The defendant operates a business known as Keune Australia, which sells and distributes haircare products manufactured overseas.

2. The defendant operates on a “just in time” inventory model. It maintains approximately one month’s worth of stock (T100.25). It receives orders for its products which it promises will be delivered to most places the next day after receipt of the order. This is a selling point on which the defendant relies for the success and growth of its business.

3. In order to keep its promise about the next‑day delivery of its goods, the defendant employs persons such as the plaintiff to “pick and pack” the goods the subject of the respective orders. Generally, employees such as the plaintiff are required to work quickly to fill the orders so that the delivery promise can be met.

4. The plaintiff was thought by his most recent supervisor, Mr Kokou Kodakpau (whom I will refer to, meaning no disrespect, by his first name), to be repeatedly slow and inefficient at his work. He had been given warnings about his speed. Whilst the plaintiff disputes he was slow or inefficient, the plaintiff’s employment was terminated in October 2016.

5. The plaintiff alleges that, prior to the termination of his employment, he was subject to workplace bullying and harassment which caused him to suffer psychiatric and psychological injury. The plaintiff, in his pleading, said that behaviour was by his superiors but in evidence says that the perpetrator of the bullying was Kokou.

6. The plaintiff has previously made claims for compensation from the defendant pursuant to the Workers Compensation Act 1987 (NSW) (the WCA). His claims were firstly, for a lump sum payment and weekly compensation, and subsequently for additional weekly compensation. It will be necessary to return to the details of those claims.

7. The plaintiff now sues the defendant in negligence, seeking damages for a workplace injury he says he has suffered as a result of a breach of duty by the defendant in respect to the bullying and harassing behaviour of his superiors. The defendant denies that the alleged incidents of bullying and harassment took place at all. The defendant concedes that if the Court finds that the plaintiff’s version as to the bullying and harassment is accepted, then it was in breach of its duty of care to him and that he would be entitled to damages. The quantum of damages is also not in issue between the parties should the plaintiff’s version be accepted.

8. For the reasons that follow, I am not satisfied that the plaintiff has discharged his burden to prove, on the balance of probabilities, that the events as he described them did take place. Accordingly, I am not satisfied that the defendant acted in breach of its duty of care to the plaintiff and I will enter Judgment for the defendant.

ISSUES

Leave to Proceed

9. The plaintiff required leave to proceed with this claim as it was not brought within three years of the date of injury: s 151D(2) WCA. Leave to proceed was neither consented to nor opposed by the defendant.

10. An affidavit of the plaintiff sworn on 16February 2021 was read on the application for leave. Mr Nicholson, counsel for the plaintiff, made submissions as to why leave should be granted. I granted the appropriate leave and the hearing proceeded. I should briefly set out my reasons with respect to that matter.

11. The relevant considerations in applications for leave under s 151D are, in summary:

1. Whether there is a sufficient explanation for the delay;

2. Whether there is a reasonably arguable claim of negligence; and

3. Whether the conduct of a trial which is significantly out of time would not cause the respondent significant prejudice so as to render the trial unfair.

(see: Gower v State of New South Wales [2018] NSWCA 132 and the cases there cited).

12. In this case, the explanation for the delay was that the plaintiff took steps to quickly consult his legal advisors with respect to the conduct that he says he was subjected to at his workplace and that medical reports were sought as to his psychological condition. There was a need for stabilisation of the plaintiff’s conditions before the nature of any impairment, including whole person impairment, could be ascertained. Once that was ascertained, proceedings with respect to that whole person impairment for compensation were commenced and these proceedings were commenced for work injury damages. I am satisfied that there is an appropriate explanation for the delay which, in any event, is not significant.

13. I am satisfied that there is a reasonably arguable claim in negligence in these proceedings. No prejudice was asserted by, or has been caused to, the defendant by reason of any delay in the commencement of the proceedings. Accordingly, I granted leave.

An Unpleaded Claim of Estoppel

14. Before I turn to the factual issue of whether or not the bullying and harassment took place, there is an anterior legal issue that needs to be determined. The plaintiff alleges that, as a result of the defendant’s conduct in the most recent of his WCA claims, it is estopped from contesting that the bullying and harassment which he alleges occurred.

15. This issue was not pleaded. It should have been. However, the defendant did not take a pleading point. As the matter was argued, I will deal with it as best I can.

16. Because the issue was not pleaded, the nature of the estoppels claimed by the plaintiff are opaque and confusing. In the written outline of closing submissions, and in oral address in support of the estoppel claims, counsel for the plaintiff, Mr Nicholson, made reference to Blair v Curran (1939) 62 CLR 464, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387. Each of those authorities deal with different concepts. It appears that the plaintiff has conflated concepts of estoppel, including issue estoppel and promissory estoppel. This is precisely why this matter should have been pleaded; so that the arguments relied upon by the plaintiff could (or at least should) have been delineated and made clear, and the issue could have been properly joined by the defendant.

17. Blair v Curran relevantly discusses the doctrines of res judicata and issue estoppel. By the doctrine of res judicata, a cause of action which has been determined by a court of competent jurisdiction or by a tribunal cannot be re‑litigated. It is to be distinguished from the doctrine of issue estoppel. At [47] of that decision, the High Court said:

“The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgement, so that it merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order.”

18. Issue estoppel, on the other hand, may arise if a state of fact or law has been determined which would prevent a party from bringing, or defending, another claim. In Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935, Lord Guest said that issue estoppel will not arise unless the following components are satisfied:

“…(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”

19. Relevant to this matter is whether consent orders can give rise to an issue estoppel. In Ekes v Commonwealth Bank of Australia [2014] NSWCA 336, Bathurst CJ (Beazley P and Emmett JA agreeing) said:

1. The principles which determine whether an issue estoppel arises are well established although their application can cause difficulty. For an issue
   estoppel to arise it is necessary that it be established that the same question arises, that the judicial decision said to create the estoppel was final and that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 at 935 and Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [21].

2. It was accepted correctly by the parties that a consent judgment could give rise to an issue estoppel: Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 (Chamberlain) (although that was a case of res judicata or cause of action estoppel), Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib) at [186] and Makhoul v Barnes (1995) 60 FCR 572 at 582.

3. An issue estoppel will only arise in respect of those matters which a primary decree, order or judgment necessarily established as the legal foundation for the decision and nothing but that which is legally indispensable to the conclusion is thus finally closed or precluded: Blair at 531-532. In the case of a judgment by consent this may be productive of some difficulty: Chamberlain at 508 and Isaacs v The Ocean Accident and Guarantee Corporation Ltd and Winslett (1958) SR (NSW) 69 (Isaacs) at 75. As was pointed out in the latter case, a court will examine all evidence that is available and admissible and with the aid of such material ascertain any and what adjudication of matters in dispute was expressly or necessarily involved in the actual decision assented to.

4. In the present proceedings the appellant contended that this was a case where the only estoppel which arose from the consent judgment was the actual order itself, relying on what was said by Santow J in Minero Pty Ltd v Redero Pty Ltd (Unreported, Supreme Court of New South Wales, 29 July 1998).

5. In Handley, Spencer Bower and Handley Res Judicata (4th ed 2009, LexisNexis) (Spencer Bower and Handley Res Judicata), the learned author points out at 2.16 that the extent to which a consent judgment gives rise to an issue estoppel has not been finally decided. However, it seems clear that in determining that issue the court can consider the objective background leading to the judgment to determine what was decided: Isaacs and In re South American and Mexican Company; Ex parte Bank of England [1895] 1 Ch 37 at 50.

   20. In the context of workers compensation claims and consent determinations, in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine) the Court of Appeal had cause to consider whether a consent determination made in a worker’s claim for weekly compensation and medical expenses, which included a finding that the worker had “fully recovered” from the effects of any psychological injury, created an issue estoppel as to that fact for the purposes of her application for a lump sum compensation in respect to the same injury.

   21. In that case, Meagher JA, with whom Leeming and Simpson JJA agreed, said (at [22]‑[38]):

6. The respondent relies on an issue estoppel with respect to a matter of fact. The difference between res judicata and issue estoppel was explained by Dixon J in Blair v Curran [1939] HCA 23; 62 CLR 464 at 532. In “the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” In Outram v Morewood (1803) 3 East 346 at 355; 102 ER 630 at 633, in a statement cited by Fullagar J in Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 at 466, Lord Ellenborough explained that an issue estoppel precludes the parties and their privies “from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them ... has been, on such issue joined, solemnly found against them”.

7. These principles apply to judgments and orders made by consent: Isaacs v Ocean Accident and Guarantee Corporation Limited [1958] SR (NSW) 69 at 75 (Street CJ and Roper CJ in Eq); Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508. For the purpose of resolving any difficulty in identifying the questions or issues necessarily decided by a consent judgment or order, reference may be made to the terms of the judgment or order as well as to the pleadings or other material showing the issues that were raised and decided by the Court or Tribunal: Isaacs v Ocean Accident at 75; Jackson v Goldsmith at 467 (as to the position where there is a decision); and Spencer Bower and Handley, Res Judicata (4th ed 2009 LexisNexis) at para 2.17.

8. With respect to factual questions, the issue estoppel applies only to what are described as “ultimate” facts and does not extend to “mere evidentiary facts”: per Fullagar J in Jackson v Goldsmith at 467. The distinction was also explained by Dixon J in Blair v Curran at 532:

   In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. …the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided on the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

   ...But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion.

9. An ultimate fact may be found by the Court or tribunal, or admitted or agreed between the parties for the purpose of determining the matter directly in issue: Hoystead v Commissioner of Taxation [1926] AC 155 at 165, 170.

A Tribunal Having Jurisdiction to Decide Finally

1. One necessary requirement for the application of the doctrine of issue estoppel is that “the judicial decision which is said to create the estoppel was final”: per Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 cited with approval in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [21].

2. It was not in contest that a final determination of the Commission constituted by an Arbitrator was capable of giving rise to an issue estoppel. In Kuligowski at [22] the Court described as “uncontroversial” the statement of Gibbs J in Administration of Papua and New Guinea v Daera Duba [1973] HCA 59; 130 CLR 353 at 453:

   The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: …The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.

3. Section 105 of the 1998 Act provides that subject to that Act, the Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under” the 1998 Act and the 1987 Act. Those matters include disputes “in connection with” claims for compensation referred to the Commission for determination (ss 287, 288, 289, 289A of the 1998 Act), being claims for compensation payable on death, weekly compensation by way of income support, compensation for medical expenses, compensation for permanent impairment and compensation for property damage (Pt 3, Divs 1 to 5 of the 1987 Act).

4. Disputes in relation to these claims are dealt with by the Commission constituted by an Arbitrator (the 1998 Act, s 375(1)). With respect to the finality of the Commission’s determination of such disputes, s 350 provides:

   350   Decisions of Commission

   (1)   Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

   (2)   A decision of or proceeding before the Commission is not:

   (a)   to be vitiated because of any informality or want of form, or

   (b)   liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

   (3)   The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.

5. The 1998 Act provides for rights of appeal for error from a decision of an Arbitrator to the Commission constituted by a Presidential Member and from a decision of the Commission so constituted to this Court, on any point of law (ss 352, 353).

6. A “final” decision was described by the Court in Kuligowski at [25]:

   …[as] one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be “final and conclusive on the merits”: “the cause of action must be extinguished by the decision which is said to create the estoppel”.

1. In Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; 109 CLR 285 at 297-298, the majority (Kitto, Taylor and Menzies JJ) rejected an argument that a power to reconsider, in similar terms to that conferred by s 350(3) of the 1998 Act, made any less final a decision expressed to be final and binding, although subject to appeal or such reconsideration.

A Tribunal Having Jurisdiction to Decide a Matter Conclusively and for All Purposes

1. The finding which the appellant says the respondent is precluded from contesting in later proceedings in the Commission concerning her claim for permanent impairment is that she had fully recovered. The appellant contends that finding was as to an ultimate fact and made in the exercise of the Commission’s jurisdiction to determine the respondent’s disputed claims for weekly compensation and medical expenses.

2. However, as McHugh JA observed in Cachia v Isaacs (1985) 3 NSWLR 366 at 387 (in relation to an issue which was referred to in Kuligowski at [57] but not necessary to decide), not all final decisions of ultimate issues by subordinate tribunals are binding as issue estoppels. He continued:

   … When a subordinate tribunal is given jurisdiction to decide a particular class of matter, it has jurisdiction to decide not only that matter but all other matters necessary for the exercise of its jurisdiction. But the tribunal has no jurisdiction to determine conclusively, as between the parties, the correctness of the appendant matters. The appendant jurisdiction is collateral or incidental and raises no estoppel.

3. That is because, as Jordan CJ explained in Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 17, the issue estoppel extends to such matters as are necessarily determined only if the court or tribunal “has jurisdiction to determine these matters for all purposes between the parties, ie, jurisdiction to determine them directly and immediately as well as merely incidentally”. Whereas that will ordinarily be the position in relation to a superior court, it is not necessarily so in relation to inferior courts or tribunals with limited jurisdiction.

4. Jordan CJ further explained the position at 19-20:

   …But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that “nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specifically appears to be so”… . But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal: … Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. … But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes … a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction. [Citations omitted]

5. The decision of the Privy Council in Attorney General for Trinidad and Tobago v Eriché [1893] AC 518 (which is cited by Jordan CJ and McHugh JA) provides an example. A stipendiary magistrate had jurisdiction to hear and determine a criminal prosecution for digging asphalt on Crown lands without a licence. However no estoppel could arise from the magistrate’s determination that the land was or was not Crown land. Although that question was necessary to decide in order to convict or acquit, the magistrate was not a court having “concurrent or exclusive jurisdiction directly upon the point” (at 523).

6. Thus it is necessary to consider the purposes for which any quality of “finality” is ascribed to decisions of a statutory body such as the Commission; as was observed in Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 at [40], “no greater ambit of finality should be attributed” to the decisions of such a body than the legislation marks out. In that case no issue estoppel arose because the relevant decisions were only final “for the purposes of determining any question or matter arising under or for the purposes” of the Accident Compensation Act 1985 (Vic): at [34] (emphasis omitted).

   22. What is commonly known as an Anshun estoppel prevents a party from relying on a claim or defence if that party unreasonably refrained from including it in earlier proceedings. In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, at [37], Gibbs CJ, Mason and Aikin JJ said:

In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.

23. In order to understand the plaintiff’s submissions on this issue, it is necessary to briefly set out a chronological history of the plaintiff’s claims with respect to his psychological injury.

24. That history is as follows:

1. The plaintiff’s employment with the defendant was terminated on 26 October 2016.

2. On 20 March 2018, the plaintiff’s solicitor notified the defendant’s insurer that he was making a claim pursuant to s 66 of the WCA for a lump‑sum payment in respect of an injury sustained at work on 23 September 2014 and 23 January 2015. That letter enclosed a report of Dr Teoh which assessed the plaintiff as having a 17% whole person impairment.

3. An application for referral for determination by the Commission pursuant to s 288 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMA) was filed on behalf of the plaintiff on 3 July 2018. The plaintiff sought a determination of weekly benefits, medical expenses and a lump‑sum payment where the degree of his impairment was in dispute. In that application, it was said that between 2 February 2014 and 26 October 2016 the plaintiff had sustained psychological injury, being major depression, arising from bullying and harassment from his superiors at work. There was also a claim by the plaintiff for compensation for a knee injury he suffered at work.

4. On 4 September 2018, pursuant to s 294 of the WIMA, consent orders by way of a Certificate of Determination (first determination) were entered in the Commission by Arbitrator Wynyard. The first determination noted that there had been an arbitration hearing and the parties had agreed as to what issues were in dispute. By reason of that agreement and in accordance with Rule 15.9(1) of the Workers Compensation Rules 2011, the Commission determined that:

1. The plaintiff’s application for determination was amended to omit from the description of injury the words “arising from bullying, harassment from his superiors”;

2. There was an award in favour of the defendant in respect to the claim by the plaintiff for the knee injury;

3. There was an award in favour of the plaintiff at the rate of $309.28 per week from 21 October 2016 to the date of the orders (97 weeks), agreed to a total of $30,000. There was an award for the defendant otherwise and thereafter in respect of the claim for weekly benefits;

4. There was an award pursuant to s 60 of the WCA in favour of the plaintiff with respect to medical expenses incurred prior to 30 August 2018. There was an award in favour of the defendant in respect of the s 60 claim otherwise and thereafter.

It can be observed from the first determination that the amendment of the application for determination by the omission of the allegations about bullying and harassment, meant that such allegations were not pressed and whether such conduct occurred was not relevant to the plaintiff’s claim.

5. On 16 October 2018, a Medical Assessment Certificate (MAC) was issued pursuant to s 325 of the WIMA assessing the plaintiff as having a psychological injury with a 15% whole person impairment (WPI). That MAC resulted from a Medical Dispute Referred for Assessment. The matters referred for assessment pursuant to s 319 of the WIMA were:

1. The degree of permanent impairment of the worker as a result of the injury;

2. Whether any proportion of permanent impairment is due to any previous injury or pre‑existing condition or abnormality, and the extent of that proportion;

3. Whether any impairment is permanent; and

4. Whether the degree of impairment of the injured worker is fully ascertainable.

It can be observed that whilst in that assessment, a history was recorded of allegations of bullying and harassment, whether or not such conduct occurred formed no part of the medical assessment and was not determined by the MAC.

6. On 27 November 2018, a Certificate of Determination (the second determination) was issued whereby the Commission ordered the defendant pay the plaintiff, as lump‑sum compensation under s 66 of the WCA, $22,000 in respect of the 15% WPI resulting from his psychological injury, deemed to have occurred on 23 September 2014. The second determination records brief reasons for the determination, that it was issued in accordance with the MAC and that as the proceedings were commenced after 2 April 2013, there was no order as to costs.

7. By letter dated 19 March 2019, the plaintiff’s solicitor wrote to the defendant setting out the (same) allegations of bullying and harassment which the plaintiff alleged he was subjected to whilst employed by the defendant and alleging that the defendant was negligent, such negligence causing the plaintiff’s injuries. The letter indicated that the plaintiff was to lodge a claim for Work Injury Damages. The letter referred to the MAC assessing the plaintiff as having a 15% WPI as a result of his psychological injury. That is, the claim for common law damages was in respect to the same psychological injury assessed in the MAC. The letter then quantified the plaintiff’s claim for economic loss by way of his common law damages. This letter was the precursor to the plaintiff commencing these proceedings.

8. On 14 August 2019, the defendant’s insurer wrote to the plaintiff’s solicitors enclosing their s 78 notice declining liability for the work injury damages claim. The notice was served in accordance with the provision of s 78 of the WIMA. In that notice, the insurer denied that any injury sustained by the plaintiff was caused by the negligence or other tort of the defendant. Further, the insurer said that the information provided by the plaintiff did not support the allegations of negligence made in the claim. Relevantly, an investigation report prepared by the insurer indicated that the plaintiff was not bullied or harassed as alleged. The insurer disputed that the specific events raised by the solicitors for the plaintiff in its letter took place.

9. The plaintiff then filed the required Pre‑Filing Statement for a work injury damages claim in this Court, such statement dated 21 August 2019. A pre‑filing statement must be served on a defendant before court proceedings for a work injury damages claim are commenced: s 315 WIMA. It was accompanied by the required Statement of Particulars in personal injury proceedings.

10. There is no dispute that the defendant filed its Pre‑filing defence on 28 September 2019, pursuant to s 316 of the WIMA. The defendant, inter alia, denied the bullying and harassment allegations.

11. By s 318 of the WIMA, for the purposes of court proceedings for work injury damages, a claimant cannot file a statement of claim materially different from that served as part of the pre‑filing statement. Correspondingly, the defendant cannot file a defence that is materially different from any defence served as part of its response to the pre‑filing statement.

12. The plaintiff filed his Statement of Claim and Statement of Particulars in these proceedings on 20 February 2020.

13. The defendant filed its Defence on 20 March 2020. In that Defence, the defendant admitted that the plaintiff had sustained an injury in respect of which statutory payments of workers compensation had been made, but maintained its denial of the allegations of bullying and harassment. It otherwise denied the plaintiff was entitled to succeed on his claim for common law damages.

14. These proceedings continued to be prepared for hearing. They were listed for hearing in the Parramatta sittings in February 2021.

15. The matter was not reached in those sittings and, according to Mr Nicholson, as a result, on 8 April 2021 the plaintiff’s solicitor sent a letter to the defendant’s insurer. That letter again set out the allegations of bullying and harassment whilst the plaintiff was employed with the defendant and alleged that he suffered a major depressive order and psychological injury (the same injury the subject of the first and second determinations and the work injury damages claim). The letter outlined a claim under the WCA for what was described in the plaintiff’s closing submissions as “the balance of the weekly compensation entitlements, post MAC” (T261.27). The claim was for weekly compensation from 27 November 2018 and continuing. This claim was pursuant to s 33 of the WCA for additional compensation to that previously awarded to the plaintiff.

16. On 21 April 2021, the defendant’s insurer sent its s 78 notice to the plaintiff’s solicitor in respect of the weekly compensation claim. In that notice, the insurer said: “we are disputing that you are entitled to ongoing weekly payments for your injury on 23/09/2014”. The defendant’s insurer, in summarising its decision, said:

“We do not agree that you are entitled to weekly payments for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987.”

The reasons for the decision were set out in more detail which, in summary, stated that the plaintiff had “…not provided any evidence establishing your claim to the rate of $790.00 per week…” or “…sufficient evidence to support your allegation of incapacity since the 27 November 2018 to date”, thereby failing to meet his evidential burden to a sufficient degree to prove an incapacity for the full period.

17. On 19 May 2021, the plaintiff filed an Application to Resolve a Dispute in relation to his claim for weekly compensation. The application again repeated the allegations of bullying, abuse and humiliation that the plaintiff had alleged in his solicitor’s letter of 8 April 2021 (and in these proceedings).

18. On 17 June 2021, the defendant served its Reply to the Application to Resolve a Dispute. That document confirmed that the matters in dispute were as per the s 78 dispute notice referred to in [24(8)] and [24(6)]. The Annexure to the reply stated:

“1.   The Respondent denies that the applicant is entitled to any weekly compensation.

2.   In the alternative, should the Respondent be found liable for weekly benefits, the Respondent should be provided with adequate evidence from the worker so as to allow the insurer to determine his PIAWE.”

Also attached to the Reply were various “supporting documents” relied on by the defendant in its denial of liability. They included the first determinations, the MAC, the second determination and various medical reports.

19. On 5 August 2021, there were Consent Orders by way of a Certificate of Determination (the third determination) of the plaintiff’s claim for the balance of the weekly compensation. By that determination there was:

1. An award to the defendant from the period between September 2018 to 26 November 2018;

2. An award to the plaintiff in the sum of $309.28 per week from 27 November 2018 to 16 July 2019 (33 weeks);

3. An award for the defendant from 17 July 2019 onwards; and

4. An award for some medical expenses incurred between to be paid to the plaintiff.

20. It was noted that, with respect to the plaintiff’s claim for incapacity from 17 July 2019, the plaintiff agreed that he had no entitlement to weekly compensation pursuant to the WCA beyond that date.

21. On 17 August 2021, these proceedings came on for hearing before me.

25. Having regard to that brief history and the principles referred to above, I will address the plaintiff’s arguments with respect to estoppel.

26. The argument made by Mr Nicholson, as I understood it, was that the defendant cannot in these proceedings contest the issue of whether or not the plaintiff had suffered a psychological injury whilst working for the defendant, nor that the bullying or harassment as alleged took place. As I understood his submissions, that is because in the plaintiff’s claim for weekly compensation outlined in his solicitor’s letter dated 8 April 2021 and referred to in [21(15)] above, the plaintiff relied on the bullying and harassment which he experienced at his work with the defendant as the cause of his injury, which entitled him to the weekly payments. That is the same bullying and harassment the subject of these proceedings.

27. Mr Nicholson says that the defendant’s s 78 notice served in response to that (see [24(8)] and [24(16)] above) claim did not indicate that it contested the plaintiff’s claim on the basis that it did not accept that the bullying and harassment took place. He says that if the defendant wished to contest that the bullying and harassment occurred, it was required to set that out in its s 78 notice. Further, in the defendant’s Reply to the plaintiff’s application, it stated that the matters by which it disputed the claim were the same as in the s 78 notice. Again, he says if the defendant wished to contest the fact of the bullying and harassment, it should have done so.

28. Because the defendant did not expressly put in issue the allegations of the bullying and harassment, so it was submitted, when the consent determination with respect to that claim was made on 5 August 2021(the third determination), it must have been on the basis that the bullying and harassment occurred and the plaintiff had an entitlement to the weekly compensation.

29. Mr Nicholson says that the third determination creates estoppels preventing the defendant from now contesting that the bullying and harassment took place.

30. First, Mr Nicholson said that the second determination constitutes an adjudication of the fact of the bullying and harassment enlivening the principles referred to in Blair v Curran, with the consequence that there has been a determination of that fact.

31. Alternatively, relying on Anshun, Mr Nicholson says it would be unreasonable for the defendant to now be able to assert in these proceedings that the bullying and harassment did not occur when it could have done so in the weekly compensation proceedings.

25. Additionally, Mr Nicholson said that once the third determination was made without putting the bullying or harassment in issue, the plaintiff was entitled to assume that the matter of proof of the bullying and harassment was no longer required and the defendant now cannot, to the plaintiff’s detriment, resile from that position.

26. Ms Balendra, counsel for the defendant, reminded the Court that there are different types of statutory compensation available to claimants such as the plaintiff under the WCA, including lump‑sum compensation, weekly compensation and medical expenses. She noted that the entitlement to claim common law damages such as those which the plaintiff pursues in these proceedings is an independent right from the statutory entitlement to compensation, albeit somewhat modified in terms of damages by the terms of the WCA. She referred to Part 5 of the WCA, which deals with common law remedies.

27. Ms Balendra took the Court to the s 78 notice filed by the defendant’s insurer in these proceedings as part of the pre‑filing processes (see [24(8)] and [24(16)] above). She noted that, in that notice, as in the Defence to the Statement of Claim, the defendant had continually maintained its denial of the fact of the bullying and harassment as being a cause of the (admitted) psychological injury suffered by the plaintiff.

28. She submitted that the third determination did not determine the issue of whether the bullying or harassment of the plaintiff in fact occurred. She submitted that no estoppels arose in this case.

29. I have come to the view that the plaintiff’s submissions should be rejected. There is no issue estoppel, promissory estoppel or Anshun estoppel in this case.

30. The cause of action in these proceedings is for work injury damages allegedly suffered by reason of tort, namely negligence arising from a breach of duty of care owed by the defendant to the plaintiff. It is an action independent of, and expressly preserved by, the WCA, albeit with some modifications to common law damages which can be recovered by the plaintiff. It is a common law remedy by which the plaintiff is required to prove, on the balance of probabilities, each of the elements of the tort of negligence, causation and loss and damage.

31. The plaintiff’s various claims for compensation under the WCA for a lump‑sum payment by reason of his WPI and then for weekly compensation arise because he has suffered an injury (see definition in s 4 WCA) whilst employed by the defendant, and to which his employment with the defendant was a substantial contributing factor, thereby entitling him to compensation in accordance with the provisions of the Act (see ss 9, 9A WCA).

32. I do not accept that the third determination with respect to the plaintiff’s weekly compensation claim and medical expenses gives rise to an issue estoppel such that the defendant cannot contest the fact of the bullying and harassment.

33. As the passages from Ekes and Hine above show, a consent judgment can give rise to an issue estoppel. However, an issue estoppel will only arise in respect of those matters which the order necessarily established as the legal foundation for the decision and nothing but that which is legally indispensable to the conclusion is finally closed or precluded.

34. In this case, I do not think that the fact of the bullying or harassment was legally indispensable to the award to the plaintiff of weekly compensation by the third determination on 5 August 2021. The plaintiff’s first application for weekly compensation was determined (also by consent) by the first determination. In that claim, the allegations of bullying and harassment were expressly removed yet he was (by consent) awarded weekly compensation. Then, having been assessed at above the relevant WPI in the MAC, the plaintiff was awarded a lump‑sum benefit pursuant to the second determination. The compensation determined by the first and second determinations was for the same psychological injury the subject of the third determination. What was determined by the first determination was that the plaintiff had suffered a psychological injury to which his employment with the defendant was a substantial contributor. That was the liability in issue that was decided by that determination.

35. The position is the same with respect to the third determination. The fact of the bullying or harassment was a mere “evidentiary fact” and not an “ultimate fact” to the question as to whether the plaintiff was entitled to additional weekly compensation for his psychological injury. There was no adjudication of the facts alleged by the plaintiff, nor the cause of the plaintiff’s psychological injury, save for that the psychological injury was suffered whilst the plaintiff was employed by the defendant and to which the employment was a substantial contributing factor.

36. The authorities also indicate that a Court may examine all evidence that is available and admissible and, with the aid of such material, ascertain any and what adjudication of matters in dispute was expressly or necessarily involved in the consent judgment. The Court can refer to the terms of the consent order, as well as the application for determination, the reply and other materials showing what issues were raised and decided by the Court or tribunal. The Court can consider the objective background leading to that judgment to determine what was decided (see Ekes at [112]‑[114]; Hines at [23]).

37. Here, the materials in evidence show that the first determination was made for the same psychological injury as the subject of the third determination (absent the allegations of bullying and harassment). The material put before the commission by the defendant for consideration for the third determination included the first determination and other documents which showed the defendant did not accept that bullying of harassment had occurred.

38. At the time the third determination was made, these proceedings were already on foot. The defendant has, at all times since the plaintiff notified it of this work injury damages claim, denied that the bullying and harassment took place. It did that in its s 78 notice, its Pre‑Filing Defence and now in its Defence.

39. Objectively, this indicates that, at the time of the consent order made in the third determination, the question of whether the bullying or harassment occurred was squarely in issue at least for these proceedings. In my opinion, that fact assists in the context of considering the question of whether the fact of the bullying or harassment was to be decided by the claim for the balance of the weekly compensation the subject of the third determination. I do not accept that objectively, the consent orders in the third determination were intended to decide, or decided, that there was bullying or harassment. Rather, as I have said, it determined that the plaintiff was entitled to weekly compensation for a psychological injury suffered whilst he was employed by the defendant.

40. The defendant in these proceedings accepts that the plaintiff has a significant psychological injury. It also accepts that the injury was caused by the plaintiff’s employment with it. It disputes the fact of the bullying and harassment.

41. In my opinion, the issue of whether the bullying or harassment took place was not closed by the third determination. It was not decided by that determination so as to give rise to an issue estoppel in respect to that fact.

42. Additionally, I cannot see how the principles in Anshun apply to this case. The defendant has always raised in these proceedings, including in its pre‑filing documents and its Defence to the Statement of Claim, that there was no bullying or harassment of the plaintiff as he alleged. These proceedings were commenced before the plaintiff made the claim in April this year for the balance of his weekly compensation under the WCA. True it is that the defendant did not specifically raise a denial of the alleged bullying conduct in its s 78 notice or Reply in the weekly compensation claim. However, I am unable to see how this enlivens any Anshun estoppel. How can the failure to raise an issue in a separate (and subsequent) WCA compensation claim make it unreasonable to rely on a matter in these proceedings which had already, and always, been put in issue?

43. Insofar as there was some suggestion of promissory estoppel in reliance on Waltons v Maher, such submission has no foundation. As it had always indicated that it was to contest in these proceedings the question of whether the bullying occurred, it cannot be reasonably said that the defendant represented to the plaintiff otherwise. There is also no evidence of any assumption made by the plaintiff following the third determination as to whether or not he was required in these proceedings to prove the fact of the bullying and harassment. It is difficult to see how the plaintiff could have reasonably made such an assumption when he knew that the defendant put the fact of the bullying conduct in issue in these proceedings. The plaintiff knew, or ought to have known, that he would need to prove in these proceedings that the conduct had occurred.

44. I note as an aside that, following the third determination, there was no correspondence by the solicitor for the plaintiff to the solicitors for the defendant indicating that the plaintiff would be taking these points. I would have expected this issue to have been raised with the solicitors for the defendant. I would have expected an application to amend the Statement of Claim to plead them would have been foreshadowed. None of this occurred.

45. The first time any hint of reliance on such concepts was raised was in the filing of the plaintiff’s Supplementary Statement of Facts in Issue dated 16 August 2021. In that document, after referring to the previous compensation claims under the WCA, the plaintiff said:

1. The defendant, in the most recent worker’s compensation proceedings filed in the Personal Injury Commission on 27 May 2021 did not dispute that the cause of the plaintiffs psychological injury claim was the bullying and harassment alleged by the plaintiff in the proceedings now before the Court (District Court of New South Wales).

2. It is the plaintiff’s contention that the bullying and harassment behaviour establishes negligence and that the issues that remain to be determined are confined to breach of duty of care and the economic loss damages resulting from that breach of duty of care.”

   53. Paragraph 4 of that Statement does not provide any particulars of why the contention there raised has any foundation. Nor does it raise the estoppels now alleged as I understand them.

   54. As I have already indicated, these are matters which ought to have been pleaded. Insofar as I have misunderstood or inadequately expressed the plaintiff’s arguments, that is because there is no pleading of these matters.

   55. The plaintiff’s submissions on the estoppel issues are rejected.

Was the Plaintiff Harassed and/or Bullied?

56. Because of the concessions by the defendant with respect to causation and quantum, the real factual issue in the proceedings is whether or not the incidents of bullying and harassment alleged by the plaintiff did take place. In order to decide this question, it is necessary to consider not only the oral evidence of the witnesses, but also the other evidence before the Court, including documentary evidence in the Court Book and histories given by the plaintiff to his treating doctors and other medical professionals.

EVIDENCE AND FACTUAL FINDINGS

57. The proceedings were conducted by way of audio‑visual link due to COVID restrictions. The parties should be commended for the manner in which they conducted the hearing with the frequent and sometimes frustrating technical hiccups.

58. The Court heard evidence from the plaintiff. The Court also heard evidence from two of the defendant’s employees at the time, Mr Sunoj Sebastian (the plaintiff’s manager) and Mr Kokou Kodakpau (the plaintiff’s supervisor). Each of the witnesses was cross‑examined.

59. The Court also received a significant number of documents in the form of a Court Book comprising 3 volumes. Much of this material was, in the end and having regard to the agreement on quantum, not read. Some was not referred to but I have had regard to it, including an investigation report conducted by QuantumCorp on behalf of the insurer of the defendant, and various medical reports.

The Pleading

60. The Statement of Claim relevantly pleads the conduct said to constitute the bullying and harassment as follows:

1. The plaintiff was, at all material times, employed by the defendant as a warehouse assistant at 23 Liberty Street Huntingwood.

2. Over the course of employment, from approximately February 2014 to 26 October 2016 the plaintiff was frequently abused, bullied and humiliated by his immediate superiors Kokou Kodakpau and Sunoj Sebastian.

3. Such abuse, bullying and humiliation took different forms but included and was not limited to:

   i)   Kokou Kodakpau yelling at the plaintiff calling him "an idiot” or a "fuckin Indonesian" and that the plaintiff was too slow in completing driving deliveries of the company's truck. This abuse occurred in the presence of fellow workers.

   ii)   Kokou Kodakpau would physically block the plaintiff’s access by turning his shoulder into the plaintiff's body.

   iii)   Kokou Kodakpau would throw plastic bottles from the production line at the plaintiff.

   iv)   The plaintiff made complaints about Kokou Kodakpau's behaviour to Sunoj Sebastian who was Kokou Kodakpau's superior however Sunoj Sebastian took no action increasing the plaintiff's anxiety.

   v)   In the defendant's lunchroom, Kokou Kodakpau, in the presence of Sunoj Sebastian came over to the plaintiff whilst the plaintiff was eating his lunch and said,

   "What are you eating?"

   The plaintiff said,       "Pork."

   Kokou Kodakpau said,   "Of course it is, you're a pig."

   61. The defendant operated its business at two sites: the main centre was at Huntingwood and the other warehouse was at Kings Park, where stock was located. At Kings Park, a subcontractor managed the site. A driver travelled between the sites to bring stock as needed to the Huntingwood premises.

   62. The plaintiff commenced employment with the defendant on 2 February 2014. He had a period of probation and training. By letter dated 25 July 2014 (CB169), the then supervisor, Mr Vernon Skadiang, informed the plaintiff that, following a review of his performance, he was confirmed as a permanent employee with a salary increase effective 1 July 2014.

   63. The plaintiff said he did not receive training (T33.22‑37; T42.19‑21). Kokou, who was the plaintiff’s floor supervisor, said he trained the plaintiff (T155.31). Having regard to the nature of the tasks required by his job, I accept that the plaintiff must have had some training as to how to do his job. I also accept that the job required the plaintiff to be able to work at speed to pick and pack the orders. The plaintiff accepted he was required to work fast (T59.11). He knew he was monitored for how fast he worked (T59.20) and that part of Kokou’s job was to monitor how fast the plaintiff was picking (T60.25‑45).

   64. In evidence, the plaintiff alleges that the first issue of concern arose for him after he commenced for a brief period to drive a truck between the two warehouses sites. He did that driving because the usual driver, Damien, was on leave (T87.32‑34). He said he had a truck driver’s licence (T38.38) but didn’t drive a truck.

   65. The evidence establishes that, ordinarily, Damien would be gone from the Huntingwood place of business to travel to the Kings Park warehouse and retrieve stock for about 1‑1.5 hours (T39.21; T113.27). When the plaintiff drove, he took longer. Sometimes it appears he took 2‑2.5 hours (T39.37; T44.26; T116.06; T116.25).

   66. The plaintiff says that when he returned to the main warehouse, Kokou was yelling at him (T39.15). He said that 90% of the time he was driving the truck Kokou was telling him he was too slow (T42.02). The plaintiff accepted that when he was driving the truck it always took him more than 1.5 hours (T44.26). The plaintiff said that he was upset and stressed by the manner in which he was treated by Kokou (T50.40; T51.03).

   67. There was conflicting evidence as to why it may have taken the plaintiff more than 1.5 hours to do the round‑trip in the truck (see the references in [9] and [10] of the defendant’s closing submissions). The timing could have been due to traffic (T37.44; T133.38), the plaintiff just waiting at the warehouse if the door wasn’t open rather than telling the staff he was there (T114‑T115) or the plaintiff having to do the loading of the truck himself (T41.09‑29; 130.03‑10). I do not think it is necessary for me to resolve any differences as to why the plaintiff was slow. He accepts that he was.

   68. I accept the defendant’s evidence that it was important that the trip between the warehouses be done as quickly as possible as the stock was required at the main warehouse to fill orders and have them dispatched in accordance with the defendant’s one‑day turnaround promise (T99.09; T100.15). I accept that the plaintiff was told he was too slow in driving the truck, although the evidence indicates that he only drove the truck for a brief period of time. I accept that the plaintiff may have been told, even repeatedly, that he was too slow when he was driving the truck, but I do not accept there is any evidence by which it can be said he was bullied or harassed when being told this.

   69. The plaintiff’s job in the warehouse when he was not driving the truck involved him “picking and packing”. The defendant’s warehouse had numerous shelves on which the various haircare products were stored. There were photographs in evidence of its layout (for example, CB404‑419). An employee such as the plaintiff would get a paper order and go to the locations on the shelves where the various products on the order were stored, pick them from the shelf, place them in a trolley and then scan them to complete the order.

   70. The defendant had a system whereby it could track the number of items that were picked and scanned by an employee. As I have said, the plaintiff knew his speed of work was being monitored. Some of those scan results were in evidence (see, for example, Exhibit 1, p 155) and they generally showed that the plaintiff was slower in comparison to other employees (T124‑T125; T158.29).

   71. The plaintiff alleges that Kokou was continually yelling at him and calling him an idiot because he was too slow. He said he was called an idiot by Kokou almost every day (T48.15‑27). He said Kokou called others “idiot” too (T49.5). He thought Mr Sebastian would have heard this (T49.15). Mr Sebastian denied ever hearing Kokou call the plaintiff or anyone an idiot and stated that would have disciplined him if he had (T102.24‑41). Kokou denied calling the plaintiff an idiot, as that would be insulting and he would not insult his workers (T182.5).

   72. The plaintiff alleged that he sent a text to Mr Sebastian complaining about this behaviour (T48.28; T69.49‑T70.06). No text was produced in answer to a call and Mr Sebastian did not recall any such text (T149.34‑39).

   73. The plaintiff said that Kokou called him a “fucking Indonesian” (T48.15; T49.34). This was only on one occasion. Kokou denies that he did (T211). The pleading alleges that this abuse took place in the presence of fellow workers. As set out below, the statements made by fellow workers to the insurance investigator, do not bear this out. This abuse was not reported by the plaintiff to Mr Sebastian (or anyone) until the disciplinary/counselling session on 27 July 2015. I will return to this below.

   74. The plaintiff originally said that Kokou bullied everyone, including Mr Sebastian (T49.22). He later backtracked and said that Kokou was rude to everyone, including Mr Sebastian (T94.39). Mr Sebastian denied this (T126).

   75. The plaintiff says that Kokou would drop papers on the floor in front of him so that the plaintiff would have to pick them up (T45.20). Mr Sebastian denied ever seeing this (T103.06). Kokou denied he did this. He said the only paper forms were order forms which were accessed from a tray (T188.11).

   76. He said that Kokou would throw the plastic bottles of the product at him from 6‑7m away (T46.20‑33). He said this happened many times. Mr Sebastian never saw this and would have started disciplinary action if he had, as the products were the company’s business (T103.20). Kokou denied he did this. He said he would not throw products on the floor as they would get dirty and could not be sold (T187.40).

   77. The plaintiff said that one day in the lunchroom Kokou asked him what he was eating. When the plaintiff told him he was eating pork, Kokou said, “Yeah, because you a pig” (T50.1). The pleading alleges that Kokou said this to him in front of Mr Sebastian. Mr Sebastian denies this (T103.25). Kokou denied he said this. He said he would not call someone an animal (T187.28).

   78. The plaintiff alleges that on more than one occasion Kokou shouldered him, causing him to be moved about a metre (T45.18‑32). Kokou denies this (T188.28). There is no evidence that anyone else witnessed this.

   79. Mr Sebastian denies that any of the matters alleged by the plaintiff took place to his knowledge. He said that where he sat in his office and having regard to the size of the defendant’s warehouse, if any of these matters had occurred or things had been said, he would have seen or heard them (see, for example, T150‑T151). He did accept in cross‑examination that it was possible that these events could have taken place in areas of the warehouse that he did not see (T142.33‑39; T143.01‑06).

   80. Kokou also denied that he engaged in any of the conduct alleged by the plaintiff. He said that he had trained the plaintiff (T155), but that the plaintiff was slow in his work (T158). He said he did talk to Nick (as he called the plaintiff) about his speed (T178), but did not do or say the things that Nick said.

   81. The plaintiff said he had reported Kokou’s behaviour to Mr Sebastian on many occasions (T50.10). He accepted, however, that he did not complain about the specific matters now said to be the bullying until a meeting he attended with the president of the company, Mr van der Velden, and Mr Sebastian on 27 July 2015 (T76-T78). That meeting was in the context of the plaintiff being counselled and disciplined with respect to his performance. The document recording what happened at that meeting is at CB420‑422. The document is as follows:

   82. The 8 items under heading 1 were complaints that Mr Sebastian had recorded, having being informed of these matters by Kokou (T104.42; T105.37). The matters under heading 2 were the plaintiff’s responses to these 8 items, as given in the meeting and typed in by Mr Sebastian (T106.35; T107.19). The matters under heading 3 were the agreed changes that were to be implemented following the meeting. It should be observed, however, that there had been no conclusion at that time that Kokou had engaged in bullying behaviour towards the plaintiff (T111.04).

   83. Following the meeting, Mr Sebastian conducted an investigation of the plaintiff’s allegations (T111.13‑112.15). He said he spoke to Kokou, who denied the plaintiff’s allegations. He also spoke to other staff members. He spoke to them separately and not as a group. None of them confirmed or corroborated the plaintiff’s allegations. The results of the investigation were not recorded in writing (T112.45), but Mr Sebastian did convey them to the plaintiff (T112.36).

   84. As I said above, there was also in evidence a report of QuantumCorp on behalf of the defendant’s workers compensation insurer. That report includes statements of the plaintiff, Kokou and Mr Sebastian in relation to the plaintiff’s allegations. The matters recorded in each of those statements are generally consistent with the evidence that was given before me. Additionally, there were statements from Mr van der Velden, the president of the defendant, who was at the interview with the plaintiff on 27 July 2015.

   85. There are also in evidence statements taken from other employees of the defendant (CCB382‑399). These include Mr Hare, who denied any knowledge of any alleged bullying and said that he had never seen or heard any bullying type behaviours from Mr Sebastian or Kokou to the complainant. He did not recall Kokou ever swearing at the plaintiff, speaking down to him or being racist to him. He said that he had not seen Mr Sebastian or Kokou bully or harass anyone in the workplace and that the plaintiff had never complained to him about such matters.

   86. There was also a statement from Mr Comina (CB388), who again denied ever having seen bullying or harassment of the plaintiff by Mr Sebastian or Kokou. He said that he had been asked to hurry up by Kokou and had several “negative interactions or little fights” with him, but regarded those as being “normal for a fast paced workplace”.

   87. A statement was also obtained from a Mr Gao (CB395), who said he had never seen any bullying or harassment by Sebastian or Kokou. In relation to Kokou, he said that perhaps the way he spoke to people sometimes would give them an “unacceptable feeling, but that would only happen occasionally”. Again, he said that the plaintiff had never complained to him about bullying or harassment by Kokou or Sebastian.

   88. Whilst none of these other employees were called to give evidence or be cross‑examined, the report and the statements were in evidence and there was no objection by either party to them being received. They are relevant and admissible. I may not give these statements as much weight as evidence from a witness who came before the Court was cross‑examined, however, they are relevant to, and I will take them into account in making my decision, as to whether or not the plaintiff has discharged his burden to prove, on the balance of probabilities, that he was subjected to the bullying and harassing behaviour as he alleges.

   89. There was also evidence about a knee injury that the plaintiff had suffered whilst he was employed by the defendant. There is no claim in these proceedings with respect to that knee injury, although it was said to be part of the context of the issues that the plaintiff was suffering at work, including with respect to his ability to perform that work quickly.

   90. After the counselling/disciplinary interview on 27 July 2015, the plaintiff continued working although, as is clear from the medical records I review below, he clearly felt under stress. Issues with respect to his work performance were ongoing.

   91. On 14 November 2015, the plaintiff provided to the defendant a medical certificate from his GP, Dr Nguyen (CB206). Dr Nguyen referred to the plaintiff’s injured knee and recommended that the plaintiff limit his standing to approximately 2 hours, after which he would need to mobilise his knee or sit down to help his pain and discomfort.

   92. On 25 November 2015, Mr Sebastian wrote to the plaintiff (CB205) referring to that medical certificate and the limitations placed on his ability to perform the inherent requirements of his role, which required him to work on his feet. The letter stated that the defendant had considered whether reasonable adjustments to the plaintiff’s role could be made, however, advised that suitable accommodations were imposing a financial hardship on the defendant and were untenable moving forward. The letter continued:

“We are now at the point where we need to make a decision based on the information we have available to us. The information indicates that you cannot perform the inherent requirements of your role.

Prior to our final decision being made to terminate your employment, we invite you to respond to this letter either verbally or in writing by close of business on Wednesday, December 2^nd 2015. We wish to advise that this is your opportunity to supply evidence contrary to what we have available. Failure to provide information that would satisfy that you can perform the inherent requirements, or to provide further suggestions on reasonable adjustments that we may need to consider, the company may need to make a decision about your ongoing employment on the basis of the evidence available.”

93. In response to this letter, the plaintiff again attended Dr Nguyen’s rooms and obtained a further medical certificate on 27 November 2015 (CB207), which certified that the plaintiff, who had a bruise on his left knee bone, was able to work his regular duties.

94. It appeared that the plaintiff then returned to work in his usual role. Things appeared to deteriorate insofar as the plaintiff’s work performance was concerned. On 24 June 2016, Mr Sebastian wrote to the plaintiff (CB153) in the following terms:

“It has been observed that despite verbal warnings on the 4^th May 2016 (when we discussed, that you are only picking 818 pieces compared to the average picking speed of 1600 pieces on that day), there is no considerable improvement in your picking speed until today. After the verbal warning, the data was checked again on the 5^th, 10th & 11th of May 2016 and there was again no considerable improvement and your argument for picking the wholesalers contradicts as you were fully allocated to piece picking at the time and not to wholesale orders.

We made an effort to give you a considerable time to improve your picking speed and your data was reviewed again on the 20^th, 21^st, 22^nd and 23^rd of June 2016. Your picking speed is again only 50 to 60% of the standard because on those days.

The company has no other option, but to give you a last and final warning to prove yourself. For the following 1 week starting from the 27^th June till 1^st of May 2016 every morning a report of your previous day performance will be handed over to you and if no significant improvement is realized (where the expectation is at least the average speed of pickers on the same day), you will leave the company no other option, but to the termination your employment as Warehouse Assistance at Keune.”

95. Things seemed to improve, albeit briefly, as on 4 July 2016, Mr Sebastian again wrote to the plaintiff (CB154) referring to his last letter noting that:

“…it has been observed that you have made an attempt to improve your performance which is based on the average picking rate…

We will keep reviewing your performance and if the picking averages considerably fall below the standard picking averages, this may lead to termination of your employment as warehouse assistant at Keune.”

96. Unfortunately, this improvement did not last and on 26 October 2016, the plaintiff received a letter terminating his employment (CB215), which stated:

“This letter confirms your dismissal from the Company for poor performance, and is effective immediately. You are dismissed because, despite multiple verbal and written warnings regarding your picking speed, your performance has not improved and you have not met the target set. For the month of October to date, you have been picking at a rate of less than 74% of the average picking rate (in pieces) of the whole picking team…”

Medical Evidence

97. As I have observed above, the defendant accepts that the plaintiff has suffered a psychological injury for which workers compensation payments have been made. There is a significant amount of medical evidence going to the plaintiff’s condition, including from the plaintiff’s treating doctors. As quantum is not in issue, should a breach of duty be established, I will not review it all. I will review some of it as contextual material coincident in time to the other evidence referred to above. Of particular relevance will be references to any complaints by the plaintiff to issues he was having at work.

98. The notes of Dr Nguyen from September 2014 indicate that the plaintiff attended his surgery on numerous occasions including with respect to his knee and visits where the plaintiff reported stress from work.

99. On 23 September 2014 (CB491), the plaintiff reported that he had been very stressed due to pressure at work with “timing and was told to be faster whilst he was already speeding”. The plaintiff, throughout November 2014 and then into 2015, reported to Dr Nguyen trouble with sleep (CB491‑492). On 29 August 2015, after the counselling and disciplinary interview of 27 July 2015, the plaintiff reported (CB493):

“…2 talk re stress at work…

counselling to be… Review:

as the situation may be better now as the ware house merge”

100. On 14 October 2015, he reported that (CB493):

“…he is happy with work just the unrealistic expectation from the man he works with pushing for time”.

I note that in none of these records is it recorded that the plaintiff indicated that he had been bullied or harassed whilst at work.

101. On 27 November 2015, Dr Nguyen’s notes record (CB494):

“Issues with work and injury…

threatened to be terminated…

issure

with work and now feeling very much discriminated

and feeling pushed…

VERY ANGRY…

want the letter to state he is able to go back to work otherwise he lose the job”.

(This is a reference to the letter I have referred to at [93] above).

102. There were further visits to Dr Nguyen throughout 2016 for various matters, including the plaintiff’s psychological condition. On 27 October 2016 (CB497), the day after he was terminated at work, the doctor’s notes record “counselling re-stress and feeling stress with pressure at work”.

103. On 31 October 2016, the notes record (CB497):

“…long talk re his work now he is terminated being complained that his work is slow

and

he feels he was bullied and harrashed for a long period seen the lawyer suggest he should speak to the WC people as well to be Review:”.

104. The balance of the notes of Dr Nguyen over 2016 and 2017 indicate a decline in the plaintiff’s psychological condition and indicate his treatment by a psychiatrist.

105. There is also in evidence treating psychiatrist reports and assessment reports for the purposes of the WCA claims. Those reports do record the plaintiff reporting to the various medical professionals bullying and harassing behaviour consistent with the allegations he was then making and now makes.

CONSIDERATION

106. As can be seen from the above review of the evidence, I am left in the position of having to decide whether or not the plaintiff has discharged his burden to prove, on the balance of probabilities, that he was subjected to the bullying and harassing behaviour he alleges. As I have recorded, the defendant concedes that if I accept that the plaintiff was subject to this behaviour, then the defendant was in breach of its duty of care to the plaintiff. The defendant accepts that that breach caused the plaintiff the damage he alleges and the parties are agreed on the quantum of damages.

107. Involved in this decision is an assessment of all of the evidence before me, including the conflicting evidence of the plaintiff on the one hand and Mr Sebastian, Kokou and the other employee statements on the other. This assessment involves a consideration of the demeanour of the witnesses and their credibility and reliability insofar as one can do that, having regard to the conduct of the trial by audio‑visual means and the repeated interruptions that were suffered.

108. The task is not an easy one but is part of the adversarial system in which our courts operate. Speaking extra judicially, Gageler J (Evidence and Truth (2017) 13 TJR 1), in discussing what is involved in fact-finding within our adversarial system of justice, said (from pp 4‑7):

The essential feature of fact finding within an adversary system of justice is that the tribunal of fact — whether it be a jury or a judge — is tasked not with the independent pursuit of truth but with arbitration of a contest between parties who assert different versions of the truth. Within an adversary system, the party who asserts the existence of a fact which another party disputes ordinarily bears the burden of its proof. The question for the tribunal of fact is not the abstract question of whether the fact exists but the more concrete question of whether the tribunal is satisfied at the conclusion of the contest that the fact has been proved to the requisite standard. The requisite standard of proof in a civil proceeding is traditionally expressed as being “on the balance of probabilities”.

Expression of the standard of proof in a civil proceeding as satisfaction on the balance of probabilities is an acknowledgement that the judgment to be made by the tribunal of fact is inevitably to be made under conditions of uncertainty. Unless we were there, and even if we were, we can perhaps never be absolutely certain that an historical event occurred.

…

Quite what is involved in the notion of satisfaction on the balance of probabilities was spelt out by Dixon J in Briginshaw v Briginshaw, one of the most frequently cited and persistently misunderstood decisions in Australian legal history. The explanation was as follows:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved…

…

What Dixon J was saying in Briginshaw was that satisfaction on the balance of probabilities involves the formation under conditions of acknowledged uncertainty of a subjective belief. The requisite belief is an “actual persuasion” that the fact in issue actually exists — that a past event the occurrence of which is uncertain and is disputed did indeed occur…

109. In this case, I must ask myself whether I have from the evidence an actual persuasion that the disputed facts in issue, namely whether the bullying conduct alleged by the plaintiff, indeed did occur. I remind myself that there is no onus on the defendant to prove anything with respect to this fact in issue, rather that the burden lies entirely on the plaintiff: see Nguyen v Tran [2018] NSWCA 215 at [54]‑[57].

110. After reviewing all of the evidence and having seen each of the witnesses in the witness box, I have formed the view that I do not have the actual persuasion of my mind that the events occurred as the plaintiff alleges.

111. First, I note that there is no evidence that the plaintiff was frequently abused, bullied or humiliated by Mr Sebastian as pleaded in [4] of the Statement of Claim.

112. With respect to Kokou, there is only the plaintiff’s evidence of the conduct which he says Kokou engaged in. Against that, there are the denials of Kokou and the evidence of Mr Sebastian that he did not see or hear such conduct in circumstances where he said he would have.

113. I accept that there is a reasonable possibility that if Kokou wanted to engage in the behaviour the plaintiff alleged, he could have done so in the defendant’s premises without Mr Sebastian having seen it. It is less likely however, in my opinion, that he could have done so without any of the other staff members who were interviewed by the insurance investigator having seen it.

114. The pleading alleges that Kokou called the plaintiff an idiot and a “fucking Indonesian” in front of Mr Sebastian and other staff. All of them denied any knowledge of such conduct.

115. The plaintiff alleged that Kokou called him a pig in front of Mr Sebastian in the lunchroom. Mr Sebastian denied having heard this.

116. In all of the evidence, there is no direct corroboration of the bullying or harassment as alleged by the plaintiff occurring. The investigation conducted by Mr Sebastian after the plaintiff raised the issue in the 27 July 2015 meeting did not uncover any proof of the plaintiff’s complaints. There is no written record of the investigation, however, I bear in mind that the defendant’s company is not a large one. I see no reason to reject Mr Sebastian’s evidence that he conducted an investigation and that it yielded no evidence to support the plaintiff’s allegations. Kokou confirmed that Mr Sebastian spoke to him about the allegations after the 27 July 2015 meeting.

117. I accept that the plaintiff did tell medical professionals that he had been the subject of such conduct, although the doctor’s notes do not record much detail. However, it was not until after his employment had been terminated that allegations similar to those raised before me were recorded by those medical professionals. Before then, the notes referred to him being stressed, or having to go fast at work when he was already speeding.

118. As to my assessment of the witnesses, I did not form the impression that any of the plaintiff, Mr Sebastian or Kokou were untruthful. I formed the view that each was doing their best to answer the questions asked of them honestly. I accept the plaintiff genuinely feels he was wronged at his work. I gained the impression he perceives he was treated very badly, particularly by Kokou. However, his perception does not prove the fact.

119. To accept the plaintiff’s version as reliable, I have to reject the evidence of Kokou and Mr Sebastian. Having regard to their evidence, and the whole of the other evidence, I am unable to reject as unreliable or not credible their evidence. I am not able to prefer the plaintiff’s version of events to their evidence. The absence of other corroborative evidence is, in my view, telling. The plaintiff has not persuaded me to the requisite standard that I should accept that the conduct which he alleges took place.

120. I formed the view that, for whatever reason, the plaintiff had difficulty in keeping up with the speed required for him to discharge his duties to the standard required by the defendant. That was both in respect to his driving the truck when he did that and picking and packing in the warehouse. I accept the evidence establishes that the plaintiff was, probably repeatedly, asked to hurry up by Kokou. This is corroborated by the various matters I have referred to above leading to the counselling/disciplinary meeting on 27 July 2015 and the subsequent correspondence I have set out. It may have been that Kokou showed some frustration with the plaintiff. I do not accept, however, that the evidence establishes to the requisite standard that Kokou engaged in the conduct alleged by the plaintiff such that it was bullying or harassment and in breach of a duty of care owed by the defendant to the plaintiff.

121. For those reasons, there will be a verdict and judgment for the defendant.

122. In the event that I am wrong in my assessment, as I have noted, breach of duty, causation and quantum are not in issue. If I am wrong in my conclusion, then the plaintiff is entitled to damages in the sum of $453,927 (I note that from this sum, the parties agree that there will need to be a deduction to account for past payments of weekly compensation to be calculated).

ORDERS

123. The orders I make are:

1. Verdict and Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

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Amendments

27 September 2021 - Minor amendment to paragraph 50 - the words "second determination" changed to "third determination".

Decision last updated: 27 September 2021