Findlay v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3765 of 2008

PAULINE JUNE FINDLAY	Appellant
	v
STATE OF VICTORIA & ORS	Respondents

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JUDGES	MAXWELL P, ASHLEY JA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 November 2009
DATE OF ORDERS	30 November 2009
DATE OF PUBLICATION OF REASONS	11 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 294
JUDGMENT APPEALED FROM	Findlay v State of Victoria (Unreported, County Court of Victoria, Judge Robertson, 14 March 2008)

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Practice and Procedure - Appeal - Claim in contract and tort by former policewoman against State of Victoria and other serving and retired policemen - Claim dismissed - Whether appellant sought to raise a new case on appeal - Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr JWK Burnside AO, QC with Mr ADB Ingram	Cahills
For the First, Second and Third Respondents	Mr TJ Casey QC with Mr AN Murdoch	Thomson Playford Cutlers

MAXWELL P:

I have had the considerable advantage of reading in draft the joint judgment of Ashley JA and Hollingworth AJA. Their Honours have set out comprehensively the reasons for the order made on 30 November 2009 to dismiss the appeal. I respectfully agree with their Honours’ statement of the reasons for the order.

I would add only this. When – as here – a plaintiff alleges a negligent failure to act, the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis.[1] That is, the plaintiff must propound an alternative state of facts premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify:

(a)what the defendant would have done had reasonable care been exercised; and
(b)how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered.

[1]J G Fleming, The Law of Torts (9^th ed, 1998) 219–21.

The plaintiff may, of course, advance more than one such hypothesis. For example, the plaintiff may contend that the defendant could – and should – have taken one of several alternative courses of action, any one of which would have been sufficient to avert the loss. Again, the plaintiff may identify a specific course of action which ought to have been taken but which – the plaintiff accepts – could have produced more than one possible result. The plaintiff would have to prove that, whichever result had followed from the action in question, the loss would have been averted.

As the joint judgment demonstrates, at trial the present plaintiff (appellant) advanced but one relevant hypothesis to establish the causal significance of the alleged omissions by the supervising officers (Button and Henry). Had they taken reasonable care, she contended, Button and Henry would have caused there to be an investigation of her complaints of harassment and bullying. That investigation would have established that she was in fact being harassed and bullied; this would have led to ‘the course of conduct’ being stopped; and hence the loss and damage which that conduct caused would have been averted.[2]
[2]See [129]-[131] of the joint reasons.

On the appeal, the appellant was constrained (by reason of the dismissal of her claims of bullying and harassment as against the fourth and fifth defendants) to abandon that hypothesis. In her written and oral submissions, as the joint judgment explains,[3] she propounded various different hypotheses – that she had been exposed to negligent bullying and harassment; that she had been exposed to non-tortious bullying and harassment; and that there had in fact been no bullying or harassment at all but by reason of mental illness she had perceived herself to be bullied and harassed. Each hypothesis was directed at establishing the same conclusion, namely that the putative investigation would have revealed that she was suffering from a serious mental illness, as a result of which she would have been judged unfit for operational duties and would have been removed from the workplace which was causing her harm. Each variant took as its starting point the judge’s (unchallenged) rejection of the plaintiff’s case that she had been systematically victimised.
[3]See [178]-[191] of the joint reasons.

Just as a trial judge may not uphold a different causal hypothesis from that which the plaintiff advanced, so a plaintiff may not ask an appeal court to uphold a different causal hypothesis from that which she advanced at trial. In addition to serving the public interest in finality of litigation, the rule that a plaintiff is constrained by the case presented at trial reflects the fundamental requirement of procedural fairness, which underpins the conduct of all adversarial litigation.[4] As McHugh and Kirby JJ said in Suvaal v Cessnock City Council:[5]
[4]See, eg, Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279, 287.
[5](2003) 77 ALJR 1449, 1467 (citations omitted).

If a party participates in a trial to meet a particular case which that party has pleaded and presented in only one way, it would be unfair to the other party

to decide the case on a different basis of which the losing party had no fair notice and which it had no proper opportunity to defend. Although rigid adherence to pleadings is no longer uniformly practised and not a few cases stray from the pleadings without consequential amendment, such practices cannot excuse procedural injustice. It is elementary that a party is entitled to know the issues of fact that are to be decided in a trial where these are determinative of its success or failure.

ASHLEY JA

HOLLINGWORTH AJA

Pauline Findlay, the appellant, brought a claim for damages for personal injury. Her Statement of Claim underwent a number of reformulations. By the time of trial it was described as ‘The Further Amended Further Amended Statement of Claim’.

As commenced by writ filed 17 April 2001, the appellant alleged against the State of Victoria (‘Victoria’) that problems which she had encountered in her service as a police officer at Swan Hill between June 1995 and November 1997 caused her psychiatric injury, loss and damage for which Victoria was responsible.

By order made 14 June 2002, six individual defendants - five serving or former police officers and a counsellor who contracted to the Victorian Police Association - were added as defendants, and specific allegations of tortious conduct were made against each of them. It was pleaded that Victoria was liable, on one basis or another, for the offending conduct of the present or former police officers. The claim against the sixth individual defendant was different in kind. It was framed in libel and slander.

The defamation pleading underwent amendment. But in August 2005 the Statement of Claim in its amended form so far as it related to that defendant was struck out.

The proceeding went forward very slowly. It did not come to trial until August 2007 - that is, more than six years after the writ had been filed. In that period

a very large number of interlocutory orders had been made, and the proceeding had been fixed for trial - and then unfixed - a number of times. As an exercise in effective case management, what occurred was a signal failure.

The trial began on 28 August 2007, initially by judge and jury. At that stage, the defendants were Victoria and the five serving or former police officers.

Some weeks into the trial, the jury was discharged because a reference, misleading in part, was made in the evidence to insurance.

Further in the course of the trial, the claim formulated against the sixth defendant, a policeman named Tompsett, was reformulated - so as to convert it from a Wilkinson v Downton[6] claim to one founded in common law negligence. Later, an order was made by consent that the proceeding against that defendant be dismissed.
[6][1897] 2 QB 57.

Also in the course of the trial, at a late stage in the appellant’s case, the Statement of Claim was once again amended. The principal effect of the amendments was to add a particular of misbehaviour with respect to the fourth and fifth defendants, policemen named Cook and Lyons, and to reframe the injury alleged to have been caused by the impugned conduct. Of these matters, more later.

The trial occupied 54 or 55 sitting days between 28 August 2007 and 15 February 2008. Thirty seven witnesses, including the appellant and the four remaining individual defendants, gave evidence. In some instances the witnesses gave lengthy evidence. The appellant’s evidence in chief occupied three days; and she was cross-examined, it seems, over a seven day period.[7]
[7]The appellant gave evidence on two occasions. After giving lengthy evidence at the outset of the trial, she was recalled towards the close of her case.

In addition to the viva voce evidence, many documents were put in evidence.

The judge delivered reasons for judgment on 15 March 2008. The appellant failed against all remaining defendants. That outcome was reflected in orders made on 23 April 2008 in favour of the first defendant, Victoria, the second and third defendants, policemen named Button and Henry, and Cook and Lyons.

The appellant filed and served a Notice of Appeal. It was amended pursuant to an order of this Court made on 25 May 2009. By that time the appellant had resolved her dispute with Cook and Lyons. The Court is not privy to the basis upon which the appellant’s claim was resolved against those men.

By her amended Notice of Appeal, the appellant sought to challenge the judgment in favour of Victoria, Button and Henry.

The respondents filed a Notice of Contention on or about 19 June 2009.

The appeal came on for hearing on 30 November 2009, the parties having filed lengthy submissions earlier on. The Court heard argument whether, as the remaining respondents contended, the appeal impermissibly sought to agitate a new case.

After hearing argument, in the course of which counsel for the appellant resisted the contention that his client was seeking to raise a new case, but conceded that if his submissions on the issue were rejected then the appeal must fail, the Court concluded that the respondents’ submissions should be upheld. It ordered that the appeal be dismissed for reasons to be later published. These are those reasons.

The Notice of Appeal and the Notice of Contention

Although the import of the issue agitated on 30 November 2009 cannot be understood without an understanding of (1) the pleadings, (2) the way in which the trial proceeded, (3) the reasons for judgment, and (4) the significance of the appellant not pursuing her appeal against Cook and Lyons, the significance of those other matters in turn cannot be understood unless the issues raised by the Notice of Appeal and the Notice of Contention are stated.

The parties agreed that it was unnecessary to litigate a number of issues raised by those documents. We set out so much of those documents as related to issues which remained alive on the appeal – which is not to say that we needed to deal with each such issue.

Notice of Appeal

GROUNDS OF APPEAL

A. The employment relationship

…

3.Having found that Sergeant Busiko failed to listen to the concerns of the Fourth Respondent (‘Cook’) and the Fifth Respondent (‘Lyons’) which in turn impacted on their behaviour and attitude towards the Appellant, the learned trial Judge erred in law in failing to hold the State of Victoria vicariously liable for the conduct of Sergeant Busiko.
4.Having found that the Appellant’s mental condition was such that she should not have been assigned to operational duties at Swan Hill TOG (‘SHTOG’), the learned trial Judge ought to have found:
(a)that the State of Victoria (through Button, Cook and Lyons) was aware of the matters which, in his Honour’s judgment, rendered her unfit for operational duties at SHTOG; and
(b)that the State of Victoria failed in its duty of care by leaving the Appellant on operational duties while unfit for those duties and in circumstances where she was complaining of victimisation and those complaints were being disregarded.

B. Failure to consider Appellant’s case
5.The learned trial Judge failed to consider the Appellant’s case at trial against the Second and Third Respondents (‘Button’ and ‘Henry’ respectively). Specifically, the learned trial judge:
(a)Failed to consider the Appellant’s case that Button and Henry had failed to investigate adequately or at all the complaints made by the Appellant concerning the alleged conduct of Cook and Lyons;
(b)Failed to consider the steps which Button and Henry ought to have taken in response to the complaints made by the Appellant concerning the alleged conduct of the (sic) Cook and Lyons.

6. The learned trial Judge failed to consider the Appellant’s case that:
(a)The Appellant had complained to Button about numerous acts of victimisation and harassment by Cook and Lyons, including an allegation that Cook had said words to the Appellant which amounted to a death threat;
(b)Button had considered all of the allegations to be serious and requiring investigation;
(c)Button considered Cook to be ‘manipulative, devious and a liar’;
(d)Button did not investigate the allegations because he was related by marriage to Lyons;
(e)Button communicated the allegations to Henry in a manner which minimised their apparent significance and did not mention the apparent death threat made by Cook;
(f)Henry did not investigate the allegations, and remained unaware for a significant time of the allegation of an apparent death threat made by Cook;
(g)Henry did not investigate the allegations despite being expressly requested to do so by the Equal Employment Office.

7.        In dismissing the Appellant’s claims against –
(a)       the State of Victoria;
(b)       Button;
(c)       Henry –
the reasons for judgment of the learned trial Judge are inadequate or alternatively fail to disclose a path of reasoning.

C. Findings contrary to the evidence
8.The reasons for judgment misstate and/or misunderstand the evidence and/or are contrary to the evidence or the weight of the evidence.
9.The learned trial Judge erred in failing to make findings of fact set out in Annexure A, as those facts were either not challenged or not contradicted.

…
11.The learned trial Judge erred in failing to find that the (sic) Cook and Lyons had victimised the Appellant.
12.The finding of the learned trial Judge that Cook and Lyons were unwittingly the victims of the Appellant’s behaviour was perverse and was contrary to the evidence and the weight of the evidence.
13.The learned trial Judge took into account an irrelevant consideration in assessing the weight to be accorded to the evidence of Cook and Lyons; namely, that at the date of trial each was a ‘mature-aged married man’.

14.      The learned trial Judge erred in finding that the Appellant –
(a)       knew ‘the state of her health’ (other than in a lay sense);
(b)       ‘chose to conceal’ the state of her health from –
(i)        Button;
(ii)       Henry; and
(iii)      other officers at SHTOG.

15.On the evidence before him the learned trial Judge ought to have found that –
(a) Button;
(b) Henry; and
(c)each of the SHTOG officers with whom the Appellant worked –

was aware that –
(i) the Appellant had been assaulted by Kersten;
(ii)the Appellant’s posting to SHTOG had been delayed because of the assault by Kersten;
(iii)the Appellant was or was likely to be suffering from a psychological response to the assault by Kersten.

16.The finding that ‘had Button or Henry known of the nature and extent of the Appellant’s mental illness, she would not have been allowed to perform operational duties at SHTOG much less being appointed as the Acting Sergeant when Busiko himself was away on sick leave’ –
(a)ignores the evidence that Cook and Lyons asserted to Button that the Appellant ‘had mental problems’, but that Button took no steps to ascertain whether that assertion was accurate;
(b)ignores the evidence that Button was of the opinion, which he communicated to Henry, that the Appellant’s mental and emotional condition was a matter of serious concern;
(c)ignores the uncontradicted evidence that Button was of the opinion, which he communicated to Henry, that the conduct of the Cook and Lyons had ‘aggravated a very serious condition of [the Appellant’s] health’;
(d)ignores the evidence that Button took no steps to have the Appellant assessed by the Police Medical Officer at the relevant time.

17.The learned trial Judge erred in finding that there was no negligence on the part of either Button or Henry, in circumstances where:
(a)each of them was aware of the circumstances which made the Appellant vulnerable to the effects of bullying or victimisation;
(b)each of them ignored the evidence of the Appellant’s fragile emotional state;
(c)each of them was aware of the Appellant’s complaints that she was being bullied and victimised;
(d)each of them failed to take any or any adequate steps to investigate whether the Appellant’s complaints of bullying and victimisation were well-founded or were a reflection of a condition which made her unfit for continued operational duties.

18.In assessing the Appellant’s evidence the learned trial Judge failed to have any or any adequate regard to the uncontested medical evidence as to –
(a) the nature of her psychiatric condition; and
(b)the medication being taken for treatment for her psychiatric condition –

upon –
(i) her capacity to give evidence; and/or
(ii) her processes of memory and concentration.

19.The learned trial Judge erred in finding that the weight to be attached to the evidence of medical practitioners was diminished by the late production of the reports of Ms Coleman and Ms Baudinet-Johnson in that:
(a)such reports were considered and tested during the evidence given by such practitioners;
(b)The Respondents did not call any medical practitioners to contradict the opinions in those reports.

20.The learned trial Judge failed to have any or any adequate regard to the uncontradicted medical evidence that, taken alone, any Post-Traumatic Stress Disorder (‘PTSD’) that the Appellant was suffering as a result of Kersten assaulting her, such PTSD would have resolved with appropriate treatment within 6-12 months of the assault.
21.The finding by the learned trial Judge that the psychiatric condition of the Appellant was not materially aggravated and/or accelerated and/or worsened because of the conduct or behaviour to which she was exposed at SHTOG was contrary to the evidence of the weight of the evidence.

Annexure A
Findings of fact which ought to have been made, as the Appellant’s evidence on these matters either not challenged or not contradicted:
(a)In late 1995 or early 1996 while returning from duty at Birchip Cook abused the Plaintiff and accused her of wasting time in relation to the Plaintiffs decision to interview the victim of an alleged rape;
(b)Cook in the presence of other members including Lyons and Tompsett on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard to her work performance and ability to be a ‘real’ T.O.G. member;

(c)Cook during the period when the Plaintiff was Acting Sergeant refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded Cook of his duty Cook replied. ‘Why don’t you do it. You’re the fucking sergeant’, or words to similar effect;
(d)Cook on occasions refused to compile or submit briefs of evidence for checking by the Plaintiff;
(e)Cook repeatedly told the Plaintiff that she was mentally unstable, should seek help, that everybody ‘hated (her) guts’ and that lots of civilian complaints had been made against the Plaintiff;
(f)Shortly following an audit conducted by Chief Inspector Button and Senior Sergeant Tanner, during which alcohol was discovered on police premises the (sic) Cook, Lyons and two other members gathered at the rear of the T.O.G. office and when the Plaintiff approached her vehicle to go home Cook and Lyons both shouted abuse at the Plaintiff and accused the Plaintiff of ‘dobbing’ them into the Command. Cook made further offensive remarks about the Plaintiffs mental stability. Her fitness to be a police officer and to be in charge of the T.O.G. while Sergeant Busiko was on leave;
(g)When the Plaintiff attended Swan Hill Police Station on a Rest Day in order to complete a confidential report for Divisional Command Cook approached the Plaintiff made derogatory remarks regarding the Plaintiffs inability to complete her work within rostered hours and snatched part of the document and began to read it;

(h) Cook slammed doors in the Plaintiffs face;
(i)Lyons in the presence of other members including Cook and Tompsett on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard t her work performance and ability to be a ‘real’ T.O.G. member;
(j)Lyons during the period when the Plaintiff was Acting Sergeant, refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded Lyons of his duty Lyons replied ‘Why don’t you do it. You’re the fucking Sergeant’, or words to similar effect;
(k)Lyons on occasions refused to compile and submit briefs of evidence for checking by the plaintiff;
(l)Lyons falsified Running Sheets and on one occasion while on duty with the (sic) Cook, re-wrote a Running Sheet after being observed by the Plaintiff in central Swan Hill when they had been ‘tasked’ by the Plaintiff to perform duties elsewhere;
(m)Lyons on occasions crept up behind the Plaintiff and jumped so as to make a loud noise thereby alarming the Plaintiff and said, ‘Don’t get stressed, Pauline’, or words to similar effect;

(n) Lyons slammed doors in the Plaintiffs face;
(o)Lyons refused to hand the Plaintiff the keys to Police vehicles instead throwing them across the room onto tables or benches;
(p)Lyons in the presence of the Plaintiff and others referred to the Plaintiff as ‘loopy’.

Notice of Contention
A.The appeal as articulated in the Amended Notice of Appeal represents such a departure from the Appellant’s case at trial such that the appeal should not, on that ground alone, be allowed.

We should now say something, in a preliminary way, about the significance of the deletion of grounds of appeal numbered 11 and 12.[8] Their deletion followed the resolution of the appellant’s appeal against Cook and Lyons, and the significance of their deletion was this: on its face, as will be seen, the appellant alleged by her Statement of Claim that she had been bullied, obstructed, harassed, intimidated, abused and threatened in the performance of her work by fellow employees, particularly Cook and Lyons. She further alleged that this conduct was intended and/or calculated to cause her injury, and so was a tort of the Wilkinson v Downton kind. Further, her claims against Victoria, Button and Henry were, on the face of it, interrelated with those allegations. The judge found, however, that the appellant was not mistreated by Cook or Lyons with intent to harm her. Indeed, he found a large number of the incidents of which the appellant gave evidence had not happened at all, or had not happened with the import contended for by the appellant. He further found that the appellant was the instigator of such unpleasantness as did occur, her conduct being the product of her being mentally unwell at the time.
[8]Although ground 13 was not abandoned, its significance was doubtful in circumstances where the findings attacked by grounds 11 and 12, dependent in part upon an assessment of the credit of the appellant, Cook and Lyons were not pursued.

In the event, the deletion of grounds 11 and 12 meant that the appellant could no longer contend that the judge had erred in the manner there alleged. The question which then arose, highlighted by ground A of the Notice of Contention, was whether in pursuing an appeal against the first to third respondents founded on a bedrock of something other than the fact of bullying etc, the appellant was seeking to pursue a different case to that pursued at trial. The appellant’s answer to this question was ‘no’, counsel contending that an alternative case had been open on the pleadings and had been conducted – though not at the forefront – at trial. The respondents, on the other hand, contended that the pleadings, the conduct of the trial and the reasons for judgment below showed that the case at trial had been founded on the fact of bullying etc – indeed, bullying with intent to and/or calculated to cause the appellant injury.

Circumstances

We should now refer to some of the circumstances which were disclosed by the evidence. We will refer both to matters which were uncontroversial, and to some matters where there was dispute.

The appellant was born on 21 January 1962. She joined Victoria Police on 2 June 1986. She graduated from the Police Academy on 3 October 1986 with excellent results. After a period in Force Reserve, she was assigned to Elwood Police Station in February 1988. She was transferred to Frankston Traffic Operations Group in November 1989. There she remained, save for a short period, until September 1990.

In October 1990, a motorist made a written complaint about the appellant’s conduct. The gist of it was that the appellant had behaved rudely and aggressively. She was counselled by two senior police officers. In the course of counselling, it appears, she was told that a large number of fellow police officers considered that her attitude towards them was unsatisfactory. She became very distressed, and went off work. She made a WorkCover claim for stress-related illness. She was off work for a short while, resumed duty, but soon ceased again. She was then off work, it seems, until July 1991. In that period she was psychiatrically assessed and attended a psychologist.[9] She undertook a stress management course. Her attitude to those who had counselled, and later re-interviewed, her was one of anger. She complained, it seems, to the Industrial Relations Department and Equal Opportunities Office of Victoria Police.
[9]She also had surgery to fuse an injured right thumb; but nothing turns on this circumstance.

When the appellant resumed work, it was at Nunawading Police Station.

The appellant was promoted to senior constable in October 1991.

In April 1992, the appellant transferred to Elsternwick Police Station.

In late 1993, the appellant took maternity leave. She already had one child, by a previous marriage.

Between December 1993 and July 1995, the appellant consulted on a number of occasions with Ms Helen Boots, a social worker employed in the Social Work Department of Victoria Police. Many of the consultations were to do with the appellant being a single mother with a young baby who was not well. At different times the appellant reported feelings of anger, and of finding criticism by her friends of her situation difficult. She felt betrayed and abandoned by the criticisms. The appellant also questioned problems with relationships. She reported, again, that people at work saw her as ‘aloof, a bitch and unfriendly, … not very popular’; and that she had ‘always felt there was a glass wall between her and other people.’

On 15 July 1995, the appellant was assaulted by her then boyfriend, a policeman named Kersten. They had been in a relationship for a few months. In time he was charged, was committed for trial, stood his trial, and was acquitted. The Crown failed to exclude the reasonable possibility that he had acted in self defence. The appellant gave evidence at the committal and at trial. The committal hearing was in mid October 1996. The trial was in June 1997. Of those events, more later.

On 1 August 1995 the appellant commenced service at the Swan Hill Traffic Operations Group (‘SHTOG’). She had been due to start work at SHTOG a little earlier. The Kersten assault had delayed her.

The appellant had sought the transfer to Swan Hill. Her parents and other relatives lived in the area. SHTOG was not her first choice. She had applied unsuccessfully for a prosecutor’s position, having qualified as a prosecutor in 1991.

The appellant was one of a number of senior constables attached to SHTOG. She was the only female on operational duties in SHTOG. The group was headed by a sergeant. It had its own building. The principal local supervisory officer, Button, was a chief inspector who worked at different premises, the Divisional office.

When the appellant commenced duties at SHTOG, the officer in charge, a man named Busiko, told the other members that she had been assaulted by another police officer, but that the matter was none of their business.

In October and November 1995 the appellant consulted a psychologist in Bendigo, Ms Coleman. She did so on referral by her solicitors, who were preparing a crimes compensation claim referable to the Kersten assault. The history taken by Ms Coleman referred almost entirely to the aftermath of that assault. Psychological testing revealed a very high level of anxiety, a potentially serious level of depression, and a severe level of post trauma symptomatology. Ms Coleman made a diagnosis of extreme post traumatic stress disorder. The history which she recorded, her findings and her opinion strongly supported the crimes compensation claim, which had been initiated in late September 1995.

Ms Coleman, out of concern for the appellant, contacted sergeant Gill, the police welfare officer at Swan Hill; and she referred the appellant to a Ms Baudinet-Johnson, a psychologist at Swan Hill, for management.

The appellant first attended Ms Baudinet-Johnson on 27 December 1995. She consulted with Ms Baudinet-Johnson more than 100 times over the next several years.

Although Ms Baudinet-Johnson took a history on the occasion of her first consultation of the appellant’s concern about her treatment by fellow SHTOG officers, and although she recorded in the first months of 1996 many complaints by the appellant of harassment, on 8 March 1996 she provided a report to the appellant’s solicitors which entirely focused on the merits – which she opined there were – of the appellant’s crimes compensation claim.

Going back in time, the appellant gave evidence that from soon after she began work at SHTOG she was bullied, obstructed, harassed, intimidated, abused and threatened – to borrow from paragraph 14 of the Statement of Claim in its final form at trial – by fellow officers, and in particular Cook and Lyons. This behaviour intensified, according to the appellant, when her rank was upgraded to acting sergeant on 12 February 1996. For convenience, we will refer in these reasons to ‘harassed’ and ‘harassment’ when referring to the impugned conduct.

The appellant’s rank was in fact upgraded at that time, because the sergeant in charge of SHTOG, Busiko, went on sick leave. There needed to be a replacement in the short term, and the appellant became that replacement.

The appellant remained acting sergeant in charge of SHTOG until about 22 March 1996, at which time Tompsett, who was the sixth named defendant, assumed the position. The claim against him, it will be recalled, did not proceed to judgment.

Between 22 March 1996 and 16 June 1996 the appellant continued to work at SHTOG. On her account, which she communicated to Ms Baudinet-Johnson, she was subjected to continuing instances of the type of behaviour characterised at [45]. We leave until later in these reasons the particulars of the alleged conduct.

The appellant also spoke with, or made complaint to, Button, in the period March to June 1996. Most often, she told him that she would handle the matter her way.

Button took various steps in the period in question to ensure that the appellant was not subjected to the kind of conduct of which she was complaining. In early March 1996 he told SHTOG members that the appellant was acting sergeant and had his confidence. In April 1996 he told Cook to treat the appellant with the professionalism and courtesy that she deserved. He directed Cook not to approach the appellant except as was necessary for police duties.

Cook disobeyed Button. There was a meeting between Cook and the appellant. What occurred was disputed at trial. The appellant gave an account, which Cook denied, that he had, in effect, threatened to shoot her. On his account, he had only tried to settle things down between them.

Button learned that the meeting had occurred. He called Cook in, and chastised him. Later he spoke with the appellant. On his account, the appellant took the position that she and Cook should leave the past behind them, and get on with their professional lives.

On a number of occasions Button enquired after the appellant’s welfare, particularly with how she was dealing with the aftermath of the Kersten incident. She told him, in effect, that it was none of his business.

Although, it seems, the appellant raised no further complaint with Button between April and mid June 1996, on her account the kind of conduct to which we have referred continued. She gave evidence of specific incidents involving particularly, Lyons.

In mid June 1996, not long after Busiko had returned from leave, the appellant learned of a number of rumours which, she alleged, were circulating within SHTOG about her behaviour.

On 16 June 1996 she ceased work. She was off duty until 21 July 2006. On the latter date, she resumed work as an assistant prosecutor at Swan Hill. The position had been created for her.

In the period between 16 June and 21 July 2006, the appellant attended her general practitioner in Melbourne, and Ms Baudinet-Johnson. She also lodged a WorkCover Claim for work-caused stress, attended the Equal Opportunity Office of Victoria Police, was interviewed by Button, and spoke with Henry, the third respondent, who was the officer in charge of Division 1 of ‘N’ District. This district encompassed Swan Hill. Button had given consideration of the matter over to Henry in late June 1996. By marriage, Button had a relationship with Lyons; and he thought it best in the circumstances to entrust the matter to his superior.

In the period between 16 June and when he gave over the matter to Henry, Button interviewed the appellant, Cook and Lyons. He took statements or received reports from other police officers at Swan Hill – Gunning, Busiko, Tanner, Gill, Tompsett and Kahn. He discussed the matter with the police chaplain, a member of the Equal Opportunity Office and a member of the Welfare office. He prepared a report to the Internal Investigations Department, which later became the Ethical Standards Department.

In the period between 28 June 1996 and the appellant’s return to work in July 1996, Henry undertook a number of enquiries. He also received a letter from Inspector Kostiuk of the Equal Opportunity Office, requesting that an investigation be conducted into the appellant’s complaints. Henry also spoke with Sheryl Smith (formerly the seventh defendant), who claimed to have a deal of information about the appellant. Again, he wrote to the Equal Opportunity Office, saying that he was concerned for the appellant’s ‘immediate welfare’, that none of the remaining members wanted to work with her, and that it was essential in his view for a police medical officer to assess her capability to perform police duties. Further still, he created the job for the appellant as assistant prosecutor at Swan Hill.

The appellant, as we have already noted, resumed work on 21 July 1996.

In July, also, Cook was on sick leave. He submitted a WorkCover claim for a stress-related condition. In time, it was rejected.

Between mid July and late September 1996 Henry and the appellant spoke on several occasions. He continued to report to the Equal Opportunity Office. The gist of his reports was that, as a matter of welfare, the situation at Swan Hill had been investigated, that remedial steps had been taken, and that the appellant did not now want her complaint to proceed. The appellant disputed the truth of the matter last-mentioned at one stage; and on 19 September 1996, according to her evidence, she told Henry that she was concerned about rumours which were circulating.

On 19 September 1996 a police medical officer reported. He noted that the appellant’s history and the account provided by other police officers varied. He did not attempt to resolve the conflicting accounts. It was his opinion that the appellant suffered from a significant anxiety depression which was ‘remarkably compensated at the moment’ – this meaning that she was coping well and was fit for prosecutions work. But, he opined that she should not return to the place of conflict – that is, SHTOG. He stated that he remained ‘very concerned’ for her ‘psychological well being’.

The Kersten committal took place, as we have said, in mid October 1996. The appellant was extensively cross-examined. Things were put to her about her conduct when at SHTOG which evidently originated from the group. This was an understandable source of upset for the appellant. It also prompted a proposal within the Ethical Standards Department that an investigation be conducted into the role of SHTOG members in respect of the disclosure of (false) information concerning the appellant.

The appellant was off work from mid November 1996 – that is, the time at which the Kersten committal took place – until February 1997. She continued to attend Ms Baudinet-Johnson.

In that period there was considerable debate within the Ethical Standards Department as to whether, and, if so then in what manner, any investigation into the appellant’s various complaints should take. Members within the Department expressed differing views.

In any event, between February and April 1997 the appellant served as a prosecutor at Camperdown. She was assigned there at her request, and with Henry’s approval. A mentor of the appellant, Sergeant King, was stationed not very far away.

Then the appellant transferred back to Swan Hill, again as a prosecutor. Henry acceded to this transfer.

In June 1997, as we noted earlier, the Kersten trial took place. Once again the appellant was cross-examined at length. It could not be doubted that his acquittal was a serious blow for the appellant.

Thereafter, the appellant sought a transfer to a position in the Ethical Standards Department. Henry supported her application; but the appellant withdrew it after consulting her general practitioner.

In August 1997 Cook transferred to Orbost.

In September 1997 the appellant returned to work at SHTOG under a return to work plan which contained a number of restrictions pertaining to her supervision when at work. Although Button and Henry considered the restrictions to be administratively difficult to maintain, they were supported by a later police medical officer’s report, and they were implemented and maintained in fact.

It seems that the appellant ceased work, again going onto sick leave, some time in January 1998.

Then the appellant applied for a transfer out of the District. Henry was informed about it, and he supported her application, and she was formally transferred to Melbourne.

In March and April 1998, after further discussions within the Ethical Standards Department, Cook and Lyons were admonished. The language of the admonishment notices was very restrained. They stated that between November 1995 and June 1996 the particular officer had ‘failed to act in a professional manner’ towards the appellant and Busiko. Each of them had treated the appellant and Busiko ‘in a manner which indicated disrespect and contempt for their position of authority as supervisors, and in an unprofessional manner generally as colleagues’. The notices thus did not distinguish between the behaviour of the particular officer towards the appellant and Busiko.

Each of Cook and Lyons sought a review of the notice served upon him. In May 1998, after review, the admonishments were confirmed.

Also in May 1998, it seems, the appellant began duty as a prosecutor at Broadmeadows. But she did not long continue, again going on sick leave.

The appellant was officially retired on account of ill health on 30 December 1999.

It is unnecessary to recount the sequence of events thereafter. Indeed, the relevant period of alleged misconduct ended – because of amendment to the Accident Compensation Act 1985 (Vic) – on 12 November 1997.

The Statement of Claim

Thus far we have sketched a good deal of the course of the evidence. We have not specified, however, the misconduct which the appellant pleaded and its place in the Statement of Claim. Nor have we adverted to the evidence of doctors and psychologists.

The Statement of Claim, when the trial began, alleged that the plaintiff was employed by Victoria, as were each of the police defendants.

Paragraph 10 the Statement of Claim pleaded a duty of care owed by each of Victoria, Button and Henry[10] ‘to take reasonable care for [the appellant’s] safety and not to expose her to unnecessary risk of injury’.
[10]We exclude reference to Tompsett.

By paragraph 11, ‘the said period’ was defined as the period between June 1995 and 12 November 1997. Supervision by, inter alia, Button and Henry was alleged.

Paragraph 14 should be set out in full:

During the period, the Plaintiff was bullied, obstructed, harassed, intimidated, abused and threatened in the performance of her work by the conduct of fellow members of the Victoria Police and in particular the Fourth and Fifth and Sixth Defendants (‘the behaviour and course of conduct’).
PARTICULARS OF THE BEHAVIOUR ALLEGED AGAINST THE FOURTH DEFENDANT
(a)In late 1995 and early 1996 the Fourth Defendant and Fifth Defendant jointly approached the Plaintiff and told her that afternoon shift work was causing the Plaintiff to suffer ill health. That she was raising a delinquent child and that she was neglecting her child’s welfare. The Fourth Defendant and Fifth Defendant asked Sergeant Busiko to remove the Plaintiff from afternoon shift because she was unsatisfactory.
(b)In late 1995 or early 1996 while returning from duty at Birchip the Fourth Defendant abused the Plaintiff and accused her of wasting time in relation to the Plaintiffs decision to interview the victim of an alleged rape;
(c)The Fourth Defendant in the presence of other members including the Fifth Defendant and Sixth Defendant on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard to her work performance and ability to be a ’real’ T.O.G. member
(d)The Fourth Defendant during the period when the Plaintiff was Acting Sergeant refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded the Fourth Defendant of his duty the Fourth Defendant replied. ‘Why don’t you do it. You’re the fucking Sergeant’, or words to similar effect;
(e)The Fourth Defendant falsified Running Sheets and on one occasion while on duty with the Fifth Defendant re-wrote a Running Sheet after being observed by the Plaintiff in central Swan Hill when they had been ‘tasked’ by the Plaintiff to perform duties elsewhere;
(f)The Fourth Defendant entered the Plaintiffs locker room and told the Plaintiff that he wanted to ‘sort the matter out’ with the Plaintiff. The Fourth Defendant stood in the doorway, blocking the Plaintiffs exit. The Plaintiff slipped past the Fourth Defendant who followed the Plaintiff and became aggressive and shouted, ‘You deserved to be assaulted’, and that a report by the Plaintiff to Ethical Standards was ‘bullshit’ and that the Plaintiff should eave the T.O.G. and that it would be the Plaintiffs fault if ‘all the bosses came down’ on them;
(g)The Fourth Defendant said to the Plaintiff in a threatening tone of voice, ‘You’ve got to fix this problem or something terrible will happen to you. ‘When the Plaintiff enquired of the Fourth Defendant what he meant by this he replied, ‘I don’t know. Somebody could get a .38 and blow you away.’;
(h)The Fourth Defendant repeatedly told the Plaintiff that she was mentally unstable, should seek help, that everybody ‘hated (her) guts’ and that lots of civilian complaints had been made against the Plaintiff;
(i)During a lunch break from a Breath Analysis in-service at Swan Hill, while the Plaintiff was driving a police vehicle back to the T.O.G. office, with other members as passengers including the Fourth Defendant as the front seat passenger, the Fourth Defendant pulled on the handbrake hard, without warning as the Plaintiff was performing a turn in the rear of the T.O.G. compound. This caused the police vehicle to slide broadside almost contacting the compound wall;
(j)The Fourth Defendant on occasions refused to compile or submit briefs of evidence for checking by the Plaintiff;
(k)Nonsensical memos were circulated around the T.O.G. office. The Fourth Defendant forged the Plaintiffs initials at the foot of these memos with the effect that they appeared to have come from the Plaintiff.
(l)The Fourth Defendant made false entries in official Victoria Police record books and logs including Equipment Registers and Speed Camera records in some cases over-writing entries made by the Plaintiff;
(m)The Fourth Defendant contrary from a direction from Force Command refused to cease consumption of alcohol on police premises and refused to remove the alcohol from the premises when so directed by the Plaintiff. The Fourth Defendant said to the Plaintiff, ‘Get out of the fucking office. Get out. I hate your fucking guts and if you were a man I’d take you outside and punch your fucking head in. I’d punch your head in’;
(n)Shortly following an audit conducted by Chief Inspector Button and senior Sergeant Tanner, during which alcohol was discovered on police premises the Fourth Defendant, Fifth Defendant and two other members gathered at the rear of the T.O.G. office and when the Plaintiff approached her vehicle to go home the Fourth Defendant and Fifth Defendant both shouted abuse at the Plaintiff and accused the Plaintiff of ‘dobbing’ them into the Command. The Fourth Defendant made further offensive remarks about the Plaintiffs mental stability, her fitness to be a police officer and to be in charge of the T.O.G. while Sergeant Busiko was on leave;
(o)When the Plaintiff attended Swan Hill Police Station on a Rest Day in order to complete a confidential report for Divisional Command the Fourth Defendant approached the Plaintiff made derogatory remarks regarding the Plaintiffs inability to complete her work within rostered hours and snatched part of the document and began to read it;
(p)The Plaintiff was locked out of the T.O.G. office on a number of occasions. On each such occasion the Fourth Defendant or Fifth Defendant or both the Fourth and Fifth Defendant were present within the office;
(q)The Fourth Defendant on occasions crept up behind the Plaintiff and jumped so as to make a loud noise thereby alarming the Plaintiff and said, ‘Don’t get stressed Pauline’, or words to similar effect;
(r)The Fourth Defendant on occasions approached the Plaintiff while she was working at her desk stood very close to the Plaintiff and stared at her in a manner which the Plaintiff found intimidating. When on one such occasion the Plaintiff asked the Fourth Defendant to explain his behaviour the Fourth Defendant did not answer but strode from the office and slammed the door;
(s)During the period the Fourth Defendant stalked the Plaintiff and her child while the Plaintiff was off duty and out walking or shopping with her child. During the period n many occasions at night and in the early hours of the morning a T.O.G. police vehicle was driven past the Plaintiffs house. On these occasions the Fourth Defendant, Fifth Defendant and Sixth Defendant were rostered on duty;
(t)The Fourth Defendant ridiculed the Plaintiff when she asked for technical support or advice;

(u) The Fourth Defendant slammed doors in the Plaintiffs face;
(v)The Fourth Defendant refused to hand the Plaintiff the keys to Police vehicles instead throwing them across the room onto tables or benches;
(w)The Fourth Defendant refused to move vehicles which blocked the Plaintiffs entry to or exit from the T.O.G. compound;
(x)The Fourth Defendant failed to pass on to the Plaintiff both official and personal messages;
(y)The Fourth Defendant wrote a bogus message in the Members’ Personal Message Book at the Swan Hill Police Station stating that another member with whom it was rumoured that the Plaintiff had a sexual liaison had telephoned the Plaintiff;
(z)The Fourth Defendant in the presence of the Plaintiff and others referred to the Plaintiff as ‘loopy’ and ‘that fucking dog’;
(aa)While performing ‘group efforts’ at roadside locations the Fourth Defendant turned his back towards the Plaintiff if the Plaintiff spoke to him or asked for help. Further, the Fourth Defendant would fail to warn the Plaintiff of oncoming traffic at Preliminary Breath Testing
(ab)The Fourth Defendant in the presence of the Plaintiff and/or the Fifth and Sixth Defendants referred to the Plaintiff in terms such as ‘dyke’, ‘slut’, ‘frigid’, ‘bike’, ‘boofing the bosses’ and ‘needing a good fuck’;
(ac)Knowing the Plaintiff had alleged an assault on her person by another police member named Kersten and that she had suffered injuries, the Fourth Defendant communicated directly with Kersten or indirectly with other persons associated with Kersten, information about the Plaintiff arising from her service at Swan Hill TOG for use in cross-examination of the Plaintiff at committal proceedings and the subsequent trial of Kersten upon charges related to the alleged assault including the following:
(i) the Plaintiff was addicted to a drug known as Ritalin;
(ii)searches of the Plaintiff’s handbag and locker had been undertaken by members of Swan Hill TOG and/or a civilian named Sheryl Smith;
(iii)the Plaintiff’s keys to the Swan Hill TOG office had been taken off her for disciplinary reasons;
(iv)the Plaintiff had been barred from entering the Swan Hill TOG;
(v)the Plaintiff had been removed from the Swan Hill TOG for disciplinary reasons;

(vi) the Plaintiff was psychologically impaired;
(vii)numerous complaints had been made against the Plaintiff whilst she was stationed at Swan Hill TOG;
(viii)that the Plaintiff had assaulted the Fourthnamed Defendant after he had pulled on the handbrake of a police vehicle which she was driving;

(ix) the Plaintiff had fabricated evidence against a motorist;
(x)that the Plaintiff was doctor shopping for medications which she was not entitled to be prescribed;
(xi)that the Plaintiff kept her medications and drugs in a little brown box the existence of which no person had been informed yet was known to members of Swan Hill TOG;
(xii)that the Plaintiff had fabricated evidence against the driver from the B & s Ball at Lake Boga;
(xiii)that the Plaintiff would go into dazes or stare vacantly into the air when serving with other members of Swan Hill TOG;
(xiv)that the Plaintiff had been tape recorded by the Fifthnamed Defendant and that it was proposed to play such tape which would demonstrate the Plaintiff was psychologically impaired or crazy;
(xv)that the Plaintiff had been removed from duties of Acting Sergeant at Swan Hill TOG because she was not doing a good job;
(xvi)that the Plaintiff drove a police vehicle at 120kph in a 60kph zone in McCallum Street, Swan Hill;

(xvii) that the Plaintiff was a marijuana smoker;
(xviii)that the Plaintiff had inappropriately handled a situation in which beer was stored in the Swan Hill TOG fridge contrary to regulations;
(xix)that everybody at the Swan Hill TOG hated the Plaintiff and that she had been removed from that station;
(xx)that the Plaintiff was involved in unwarranted outbursts of aggressive behaviour towards people;
(xxi)that the Plaintiff had made untrue complaints to the Ethical Standards Department of the Victoria Police;
(xxii)that the Plaintiff was herself under examination by the Ethical Standards Department of the Victoria Police;

(xxiii) that the Plaintiff was unable to look after her son properly;
(xxiv) that the Plaintiff had pulled a gun on a motorist.
The Plaintiff will seek to establish by evidence given and/or inferences to be drawn from evidence given that a source of the information referred to was the Fourth Defendant by reason of the evidence of the hostility and animosity demonstrated by the Fourth Defendant towards the Plaintiff, the Fourth Defendant’s knowledge of the possibility of disciplinary proceedings being brought against him by reason of complaints made by the Plaintiff, further and Fourth Defendant’s belief that Kersten was a nice guy and further the detail of the information provided to Kersten’s counsel concerning the Plaintiff’s service as a member of the Swan Hill TOG.

PARTICULARS OF THE BEHAVIOUR ALLEGED AGAINST THE FIFTH DEFENDANT
(a)In early 1996 the Fourth Defendant and Fifth Defendant jointly approached the Plaintiff and told her that afternoon shift work was causing the Plaintiff to suffer ill health, that she was rasing (sic) a delinquent child and that she was neglecting her child’s welfare. The Fourth Defendant and Fifth Defendant asked Sergeant Busiko to remove the Plaintiff from afternoon shift because she was unsatisfactory;
(b)The Fifth Defendant in the presence of other members including the Fourth Defendant and Sixth Defendant on numerous occasions while the Plaintiff was seated at her desk picked up and read reports and briefs which the Plaintiff was preparing and questioned the validity of charges and penalties which the Plaintiff was laying or issuing and ridiculed the Plaintiff in regard t her work performance and ability to be a ‘real’ T.O.G. member;
(c)The Fifth Defendant during the period when the Plaintiff was Acting Sergeant, refused to follow proper instructions given by the Plaintiff and neglected the preparation of Running Sheets and maintenance of police vehicles. When the Plaintiff reminded the Fifth Defendant of his duty the Fifth Defendant replied ‘Why don’t you do it. You’re the fucking Sergeant’, or words to similar effect;
(d)The Fifth Defendant falsified Running Sheets and on one occasion while on duty with the Fourth Defendant, re-wrote a Funning (sic) Sheet after being observed by the Plaintiff in central Swan Hill when they had been ‘tasked’ by the Plaintiff to perform duties elsewhere.
(e)During the period when the Plaintiff was Acting Sergeant the Fifth Defendant requested the Plaintiff to forward a report direct to a Senior Officer in Force Command in Melbourne rather than through ‘normal channels’ which required entry into the Correspondence Register and passing on to the Second Defendant for information/comment and authorisation. The Fifth Defendant informed the Plaintiff that the Senior Traffic commander had directed him to bypass the ‘normal channels’ and send the report directly to him without any further recommendations or comment by District Command Acting on faith of the representations made by the Fifth Defendant the Plaintiff directed the Fifth Defendant to make certain corrections and have the report entered in the Correspondence Register. The Plaintiff signed the report as sighted and returned the report to the Fifth Defendant who then mailed the report via the internal police mail system. A short time later the Plaintiff was rebuked by the Second Defendant for breaching protocol. The Plaintiff subsequently accused the Fifth Defendant of lying to her. The Fifth Defendant laughed and said, ‘See how inept you are? Don’t try and make me responsible for your incompetence. Fuck off’, or words to similar effect;
(f)The Fifth Defendant with the Fourth Defendant as a front seat passenger accelerated his (the Fifth Defendant) private motor vehicle towards and in close proximity to the Plaintiff as the Plaintiff was walking along the side of the T.O.G. office driveway. The Plaintiff was obliged to take evasive action to avoid being struck by the vehicle driven by the Fifth Defendant;
(g)The Fifth Defendant on occasions refused to compile and submit briefs of evidence for checking by the Plaintiff;
(h)The Fifth Defendant contrary to a direction from Force Command refused to cease consumption of alcohol on police premises and refused to remove the alcohol from the premises when so directed by the Plaintiff;
(i)Shortly following an audit conducted by Chief Inspector Button and Senior Sergeant Tanner, during which alcohol was discovered on police premises the Fifth Defendant, Fourth Defendant and two other members gathered at the rear of the T.O.G. office and when the Plaintiff approached her vehicle to go home the Fifth Defendant and Fourth Defendant both shouted abuse at the Plaintiff and accused the Plaintiff of ‘dobbing’ them in to Command;
(j)The Plaintiff was locked out of the T.O.G. office on a number of occasions. On each such occasion the Fifth Defendant or Fourth Defendant or both the Fifth and Fourth Defendant were present within the Office;
(k)The Fifth Defendant on occasions crept up behind the Plaintiff and jumped so as to make a loud noise thereby alarming the Plaintiff and said, ‘Don’t get stressed, Pauline’, or words to similar effect;
(l)During the period the Fifth Defendant followed the Plaintiff and her child while the Plaintiff was off-duty. During the period on may (sic) occasions at night and in the early hours of the morning a T.O.G. police vehicle was driven past the Plaintiff’s house. On those occasions, the Fifth Defendant, Fourth Defendant and Sixth Defendant were rostered on duty;
(m)The Fifth Defendant ridiculed the Plaintiff when she asked for technical support or advice;

(n) The Fifth Defendant slammed doors in the Plaintiffs face;
(o)The Fifth Defendant refused to hand the Plaintiff the keys to Police vehicles instead throwing them across the room onto tables or benches. The Fifth Defendant failed to return keys to their proper repository to enable the Plaintiff to commence duty;
(p)The Fifth Defendant failed to pass on to the Plaintiff both official and personal messages;

(q)The Fifth Defendant in the presence of the Plaintiff and others referred to the Plaintiff as ‘loopy’ and ‘that fucking dog’.
(r)While performing ‘group efforts’ at roadside locations the Fifth Defendant turned his back towards the Plaintiff if the Plaintiff spoke to him or asked for help. Further, the Fifth Defendant would fail to warn the Plaintiff of oncoming traffic at Preliminary Breath Testing Stations and would send through large trucks and other vehicles so that the Plaintiff was ‘sandwiched’ between vehicles in the idle of the road;
(s)On 17^th June, 1996 the Fifth Defendant refused to work with the Plaintiff on the basis of his alleged belief that she was ‘dangerous’, ‘smoked marijuana’ and had ‘fabricated evidence against a motorist’ in a brief of evidence. The Fifth Defendant claimed that the Plaintiff had ‘made a scene while in uniform at a local supermarket which had brought the Police Department into disrepute’ and ‘pulled a gun on a motorist’;
(t)The Fifth Defendant in the presence of the Plaintiff and/or the Fourth and Sixth Defendants referred to the Plaintiff in terms such as ‘dyke’, ’slut’, ‘frigid’, ‘bike’ ‘boofing the bosses’ and ‘needing a good fuck’;
(u)The Fifth Defendant whilst travelling in a police vehicle with the Plaintiff refused and/or delayed returning to Swan Hill after the Plaintiff’s son was admitted to hospital;
(v)Knowing the Plaintiff had alleged an assault on her person by another police member named Kersten and that she had suffered injuries, the Fifth Defendant communicated directly with Kersten or indirectly with other persons associated with Kersten, information about the Plaintiff arising from her service at Swan Hill TOG for use in cross-examination of the Plaintiff at committal proceedings and the subsequent trial of Kersten upon charges related to the alleged assault including the following:
(i) the Plaintiff was addicted to a drug known as Ritalin;
(ii)searches of the Plaintiff’s handbag and locker had been undertaken by members of Swan Hill TOG and/or a civilian named Sheryl Smith;
(iii)the Plaintiff’s keys to the Swan Hill TOG office had been taken off her for disciplinary reasons;
(iv)the Plaintiff had been barred from entering the Swan Hill TOG;
(v)the Plaintiff had been removed from the Swan Hill TOG for disciplinary reasons;

(vi) the Plaintiff was psychologically impaired;
(vii)numerous complaints had been made against the Plaintiff whilst she was stationed at Swan Hill TOG;
(viii)that the Plaintiff had assaulted the Fourthnamed Defendant after he had pulled on the handbrake of a police vehicle which she was driving;
(ix)the Plaintiff had fabricated evidence against a motorist;
(x)that the Plaintiff was doctor shopping for medications which she was not entitled to be prescribed;
(xi)that the Plaintiff kept her medications and drugs in a little brown box the existence of which no person had been informed yet was known to members of Swan Hill TOG;
(xii)that the Plaintiff had fabricated evidence against the driver from the B & s Ball at Lake Boga;
(xiii)that the Plaintiff would go into dazes or stare vacantly into the air when serving with other members of Swan Hill TOG;
(xiv)that the Plaintiff had been tape recorded by the Fifthnamed Defendant and that it was proposed to play such tape which would demonstrate the Plaintiff was psychologically impaired or crazy;
(xv)that the Plaintiff had been removed from duties of Acting Sergeant at Swan Hill TOG because she was not doing a good job;
(xvi)that the Plaintiff drove a police vehicle at 120kph in a 60kph zone in McCallum Street, Swan Hill;

(xvii) that the Plaintiff was a marijuana smoker;
(xviii)that the Plaintiff had inappropriately handled a situation in which beer was stored in the Swan Hill TOG fridge contrary to regulations;
(xix)that everybody at the Swan Hill TOG hated the Plaintiff and that she had been removed from that station;
(xx)that the Plaintiff was involved in unwarranted outbursts of aggressive behaviour towards people;
(xxi)that the Plaintiff had made untrue complaints to the Ethical Standards Department of the Victoria Police;
(xxii)that the Plaintiff was herself under examination by the Ethical Standards Department of the Victoria Police;
(xxiii)that the Plaintiff was unable to look after her son properly;

(xxiv) that the Plaintiff had pulled a gun on a motorist.

The Plaintiff will seek to establish by evidence given and/or inferences to be drawn from evidence given that a source of the information referred to was the Fifthnamed Defendant by reason of the evidence of the hostility and animosity demonstrated by the Fifthnamed Defendant towards the Plaintiff, the Fifthnamed Defendant’s knowledge of the possibility of disciplinary proceedings being brought against him by reason of complaints made by the Plaintiff, the fifth Defendant’s discussions by telephone with another member Chris Hulley concerning the Plaintiff whilst Kersten was present, further the notification by the Fifth Defendant to members of Kersten’s defence that he had information to pass on concerning the Plaintiff and that she should be contacted for that purpose and further the detail of the information provided to Kersten’s counsel concerning the Plaintiff’s service as a member of the Swan Hill TOG.

Pausing, we note that the substantive part of paragraph 14 made use of the term ‘the period’ – which was evidently treated as a synonym for ‘the said period’; and that it defined ‘the behaviour and course of conduct’. By reference back to paragraph 10A, and reference forward to paragraph 15, it becomes very clear that the appellant was alleging a course of bullying, obstruction, harassment, intimidation, abuse and threats by, particularly, Cook and Lyons, which was ‘intended and/or calculated to cause her injury’; and as well, according to paragraph 15, to have other intended consequences.

We further note that particular (ac) of the particulars of behaviour alleged against Cook, and particular (v) of the particulars of behaviour alleged against Lyons, were introduced by amendment pursuant to leave granted by the trial judge on 11 October 2007 – that is, well into the appellant’s case.[11]
[11]See [15] above.

Finally with respect to paragraph 14, we make this general observation. Alleged against Cook and Lyons were, in all, 51 instances of alleged misconduct, some of which had multiple components. There was a considerable overlap in the misconduct alleged against Cook and Lyons; but the extent of the overlap is more apparent than real. Indeed, identical allegations, down to the use of the same language, were made against the two men.[12] There were, in the event, if the evidence matched the allegations, a very large number of allegations to be sorted through by the judge
[12]See, for instance particular (c) of the misconduct alleged against Cook and particular (b) of the misconduct alleged against Lyons. Similarly, particular (d) of the misconduct alleged against Cook and particular (c) of the misconduct alleged against Lyons.

Returning to the Statement of Claim, we should set out paragraphs 16-20. Thus:

16.On numerous occasions during the period the Plaintiff complained to her superiors and in particular the Second, Third and Sixth Defendants of the course of conduct and the behaviour of other members of the Victoria Police including the Fourth and Fifth and Sixth Defendants.
17.Despite complaints by the Plaintiff to the Second, Third and Sixth Defendants, the behaviour and course of conduct towards the Plaintiff continued (‘the continued behaviour and course of conduct’).
18.The behaviour, the course of conduct, the continued behaviour and the continued course of conduct were caused, inter alia, by the negligence of the servants and agents of the First Defendant and/or by the First Defendant’s breach of its duty.

PARTICULARS OF NEGLIGENCE AND/OR BREACH BY THE FIRST DEFENDANT
(a)Failing to supervise properly or at all the Fourth and Fifth and Sixth Defendants so as to prevent injury to the Plaintiff;

(b) Failing to discipline the Fourth and Fifth and Sixth Defendants;
(c)Failing to give any or any proper and adequate instructions to the Fourth and Fifth and Sixth Defendants, including prior to July, 1995;
(d)Failing to take any or any adequate steps to prevent harassment and intimidating conduct towards the Plaintiff by other members of the Swan Hill Traffic Operations Group and particularly the Third and Fourth and Fifth Defendants;
(e)Failing to transfer the Plaintiff from the Traffic Operations Group Swan Hill;
(f)Falling (sic) to transfer the Fourth and Fifth Defendants from the Traffic Operations Group Swan Hill;
(g)Failing to transfer the Plaintiff from the Prosecution Branch at Swan Hill;
(h)Failing to investigate properly, or at all, the complaints of the Plaintiff as to the behaviour and course of conduct of other members of the Swan Hill Traffic Operations Group;
(i)Failing to control the behaviour and the course of conduct instituted by members of the Traffic Operations Group including the Fourth and Fifth and Sixth Defendants;
(j)Failing to prevent the harassment, intimidation, abuse, obstruction, stalking and humiliation by other members of the Police Force including the Fourth and Fifth Defendants;
(k)Failing to issue a policy statement in respect of the Traffic Operations Group Swan Hill;
(l)Failing to properly investigate the Plaintiffs complaints and remedy the situation when requested by her to do so;
(m)Failing to properly investigate the allegations made against the Plaintiff by other members of the Victoria Police and the Fourth and Fifth Defendants at Swan Hill and also by Sheryl Smith, the Seventh named Defendant;
(n)Causing, permitting and allowing rumour, innuendo, false information and false allegations to be circulated amongst members of the Victoria Police at Swan Hill;

(o) Causing, permitting or allowing the continued behaviour;
(p)Causing, permitting or allowing investigations of the complaints against the Fifth Defendant to be conducted by a relative of the Fifth Defendant;
(q)Failing to properly instruct and supervise members of the Victoria Police;

(r) Failing to enforce the Code of Ethics of the Victoria Police;
(s)Failing to or refusing to institute disciplinary charges against members of the Victoria Police and particularly the Fourth and Fifth Defendants;
(t)Informing the Equal Employment Opportunity Office of the Victoria Police that the Plaintiffs complaint in respect of other members of the Traffic Operations Group Swan Hill had been withdrawn;
(u)Knowing that the Plaintiff was suffering medical and psychological symptoms of stress, failing to take any or any adequate steps to prevent the behaviour, the course of conduct and the continued behaviour from occurring;
(v)Acting on or accepting information from unreliable and inappropriate people in respect of the Plaintiff;
(w)Failing to check the source and veracity of information relating to the Plaintiff;
(x)Failing to heed the advice and warnings of Sergeant Busiko, the immediate superior of the Plaintiff, of the harm, damage or injury that was being occasioned to the Plaintiff by, inter alia, the Fourth, Fifth and Sixth Defendants;
(y)Failing to monitor the ongoing welfare of the Plaintiff especially after she complained about the conduct of TOG members;
(z)Permitting, causing or allowing the course of conduct and the behaviour to occur and continue to occur;
(aa)Failing to comply with the Ethical Standards of the Victoria Police and the provisions of the Police Regulation Act;
(bb)Failing to properly and adequately instruct the Fourth and Fifth Defendants and other police officers to cease the behaviour, the course of conduct and the continued behaviour;
(cc)Failing to comply with the provisions of the Equal Opportunity Act 1995.

19.The behaviour, the course of conduct, the continued behaviour and the continued course of conduct were caused by the negligence and/or by the Second and Third Defendants’ breach of their duty.

PARTICULARS OF NEGLIGENCE AND/OR BREACH OF DUTY BY THE SECOND AND THIRD DEFENDANTS
The Plaintiff refers to and repeats the Particulars set out in paragraph 18 hereof.
20.Further and in the alternative, the behaviour, the course of conduct and the continued behaviour were caused by the breach of duty by the servants and agents of the First Defendant (whether such duty arose contractually or out of the employer/employee relationship or otherwise) to take care to so conduct its operations as to not expose the Plaintiff to unnecessary risk.

PARTICULARS
The Plaintiff refers to and repeats the Particulars contained in paragraph 18 hereof.

Those paragraphs set out the basis of the appellant’s claim against Victoria, Button and Henry.

We observe that paragraph 16 made use of the previously defined terms – though not in identical language - ‘the (said) period’, ‘course of conduct’ and ‘behaviour’.

We next observe that paragraph 17 defined a new term – ‘the continued behaviour and course of conduct’. This was a continuation, after complaint was allegedly made, of the behaviour and conduct alleged by paragraph 14 – that is, harassment etc intended and/or calculated to cause the appellant injury.

The operative part of paragraph 18 stated the case in tort as against Victoria. It was a case that the impugned behaviour and course of conduct was caused by the negligence of Victoria, or of people for whom it was legally responsible. Although some of the particulars which followed could have addressed, if considered apart, some different case, they were all premised on the fact of tortious conduct as alleged by paragraphs 10, 14 and 15 in combination – conduct which was intended and/or calculated to cause the appellant injury.

We next observe that paragraph 19 pleaded, as against Button and Henry, the same particulars of breach as were alleged directly as against Victoria.

Paragraph 20 carried the matter no further. Although it referred simply to ‘the servants or agents of the first defendant’, when regard is had to the particulars of breach imported from paragraph 18, it evidently applied to supervisory officers; and it was again premised on the fact of tortious conduct as alleged by paragraphs 10, 14 and 15 in combination.

The same may be said in respect of paragraph 21, which we need not set out.

We next mention paragraph 23, by which it was pleaded that ‘by reason of the matters aforesaid the plaintiff was injured and suffered and will continue to suffer loss and damage’. When the trial commenced, the injuries were particularised this way:

Post-traumatic stress disorder;
Major depressive illness;
Panic disorder with agoraphobic avoidance;
Adjustment disorder with anxiety and depressed mood.

But on 11 October 2007, at the suggestion of the trial judge, the appellant obtained leave to amend the particulars of injury into this form:

Onset of condition of post traumatic stress disorder attributable to events in the course of the Plaintiff’s employment at Swan Hill Traffic Operations Group;
Alternatively aggravation, acceleration, exacerbation or perpetuation of post traumatic stress disorder attributable to assault to which the Plaintiff was subjected in or about July 1995;
Major depressive illness;
Panic disorder with agoraphobic avoidance.;
Adjustment disorder with anxiety and depressed mood.

This substantial amendment reflected the fact that the evidence concerning the appellant’s psychological response to the Kersten assault and its curial aftermath had emerged in the course of the trial. As will be seen, it had scarcely been mentioned in the opening address of then senior counsel for the appellant,[13] or in the appellant’s evidence-in-chief. Indeed, it appears only to have been brought to the attention of some of the appellant’s medical witnesses very shortly before they gave evidence.
[13]Who was not senior counsel for the appellant appearing before us.

Finally we should mention paragraph 29. The plaintiff claimed exemplary and/or aggravated damages against each defendant on the footing that such party acted in ‘contumelious disregard’ and ‘consciously and wrongly … in disregard’ of the appellant’s rights. The subjoined particulars were apt to a pleading of entitlement to exemplary damages. This pleading emphasised what was alleged to have been the serious wrongdoing of the defendants - which correlated with a claim that acts had been done with intent to, or calculated to, do injury to the appellant.

The plaintiff’s opening

The appellant’s then senior counsel opened the case to the jury at some length.[14] By way of introduction, he characterised the case as involving a ‘most unpleasant story of gender bias, harassment, victimisation and personal damage to [the plaintiff] … for no reason other than she was a dedicated, efficient and talented member of the police force.’ It was said that her career was destroyed by a ‘regime of victimisation and harassment’ and the failure of senior officers to protect her from what occurred.
[14]Indeed, the judge criticised him for going into too much detail for an opening. It could not be said that any failure by counsel to outline the ‘alternative case’ was attributable to him being brief.

The case opened against Cook, Lyons and Tompsett was that they had obstructed, harassed, intimidated, abused and threatened her, with the intention of causing her harm, and in order to induce her to leave SHTOG.

Button and Henry were said to have been negligent in failing to protect the appellant from what was occurring, and failing to rectify the problems as they arose; in so doing they were protecting ‘the brotherhood’ in the police force, which was being used against the appellant as ‘a tool for her destruction.’

The appellant’s counsel sought to portray his client as a person in robust mental health when she started at SHTOG. The 1990-1991 episode of anxiety and depression was described as something from which she had fully recovered. The assault by Kersten was mentioned only briefly, as a reason why the appellant’s move to Swan Hill was delayed by about one week. It was not suggested she had suffered relevant psychological damage from the assault or its aftermath. Her counsel described in glowing terms her competence when she arrived at Swan Hill. Indeed, he went so far as to suggest that the factors which led to her victimisation included the fact that she was ‘by far and away the most qualified, most efficient and most dedicated member‘ of SHTOG.

Counsel said, in another brief reference to the Kersten matter, that although Cook and Lyons had asked his client shortly after her arrival about the incident, she had made it clear she did not want to discuss the matter.

Counsel outlined in some detail the appellant’s case in relation to her various complaints of harassment and as to how the senior officers had handled her complaints. These matters were all opened on the basis that the events had actually occurred.

One of the matters of which she complained, according to the opening, was that Cook and Lyons soon began to question and criticise her performance, and to call her by various offensive terms which cast aspersions on her physical and personal appearance, her sexual preferences and practices, and her mental stability or lack of it. As to the last-mentioned matter, counsel stated that, in particular, Cook and Lyons started saying she was ‘a bit loopy’, a phrase which seemed to have caught on with others in SHTOG.

On the other hand, ‘some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position but that he or she may have been so placed.’[27] Thus, it was said in Water Board v Moutsakas[28] that

more than once it has been held by this Court, that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.

[27]Banque Commerciale (1990) 169 CLR 279, [12] (Mason CJ and Gaudron J).

[28]Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); and see Zheng v Cai [2009] HCA 52, [16] (The Court).

Counsel for the appellant initially submitted that even if, contrary to his principal submission, the appellant was attempting to argue a new case, nonetheless the interests of justice demanded that this Court consider it. But, after argument, he conceded that the interests of justice were encapsulated in the formulation of the ‘new case’ principles. It follows that, if the Court was satisfied that the appellant was seeking to raise a new case, there would be no residual discretion which would permit the Court to entertain the new case ‘in the interests of justice’.

The appellant did seek to conduct a new case on appeal

According to counsel for the respondents, the appellant was seeking to conduct on appeal a case which had not been raised by the Statement of Claim, by counsel’s opening address or by counsel’s final submissions, which had not been addressed in the evidence, and which had not been dealt with by the trial judge. He took us through the Statement of Claim and the opening and closing addresses for the appellant below. The last-mentioned included the appellant’s summary of the gist of the medical and other health professionals’ evidence. All of that evidence, he submitted, was premised on the actuality of the appellant’s account.

Counsel further submitted that, had the case now sought to be advanced been advanced at trial, the course of evidence would certainly have been different.

Counsel characterised the new case this way: that it was being argued that it mattered not whether the conduct of Cook and Lyons of which the appellant had given evidence had or had not occurred. It was enough that she had complained to her superiors that it had occurred. Such complaints, if fully investigated, would have shown either that they were well founded; or else that they were unjustified, and the product of mental illness. In fact, according to the appellant’s present argument, any investigation would have concluded that her complaints were an artefact of her mental illness. But, so the argument ran, because there was no adequate investigation of the appellant’s complaints, she had remained in SHTOG although suffering from mental illness, and so continued to be exposed to the ‘toxic’ work environment.

Counsel submitted that no witness had been asked, on the assumption that the appellant believed she was being harassed but that this was not in fact so –

(1) What was the effect, if any on her mental health of not separating her from those she perceived were harassing her?

(2) Whether Henry’s strategy for dealing with her complaints was in any way inappropriate in the postulated circumstances?

(3) If a more thorough investigation had been conducted and demonstrated that the appellant was not being harassed by Cook and Lyons, but rather that they were the victims of her behaviour, what impact might that have had upon her mental health?

(4) If a full investigation had resulted in the conclusion that she was unfit to continue operational police duties because of mental illness, what impact might such a conclusion have had upon her mental health?

These were all lines of questioning which, if the alternative case had been advanced at trial, the respondents would have taken up.

Counsel further submitted that the evidence was in any event incapable of supporting the new case. In particular, no doctor or other health professional had been asked to opine whether the appellant’s employment had contributed to her mental illness in the circumstances now posited. Again, the fact that such a scenario had not been put to any of those witnesses contraindicated the appellant’s argument that it had been contended for below.

Counsel for the appellant made extensive submissions in answer to the contentions for the respondents. He made it clear that he disputed the respondents’ characterisation of what he described as ‘the alternative’ case, asserting that it was not so confined.

In our view his submissions were not always consistent as to what the alternative case had been at trial, and now was. We now attempt to summarise the various threads of what he said.

Counsel contended at the outset that, contrary to the respondents’ submissions, the alternative case was not ‘harassment or nothing’. Rather, the evidence showed, as had been submitted at trial, that the appellant had been exposed to an environment at SHTOG where ‘things happened’. There had been evidence as to the occurrence of conduct which did not constitute harassment, but which distressed the appellant. The judge had accepted that many of the incidents of which the appellant had given evidence had occurred. Moreover, counsel submitted, there were the additional circumstances set out in Annexure A to the Notice of Appeal, in respect of which the appellant had given unchallenged or uncontradicted evidence. They were either incidents of tortious harassment, or at least matters falling into a lesser category of behaviour adverse to the appellant.

Counsel submitted that Button, and later Henry, knew of facts constituting the ‘toxic environment’, and knew of the appellant’s vulnerability. They should have conducted a thorough investigation. They would have found some complaints established, some not; or, alternatively, have come to a conclusion that the appellant was living in a fantasy world. Whichever had been the conclusion, the appellant would have been removed from SHTOG.

Thus far, counsel’s submissions about an alternative case advanced at trial contemplated that a thorough investigation might have revealed – (1) conduct by other members of SHTOG which was not conduct of the Wilkinson v Downton kind, but was negligent vis-à-vis the appellant; (2) conduct which was not tortious at all, but which created a ‘toxic environment’ at SHTOG; or (3) that the conduct complained of by the appellant was an artefact of her mental illness. The starting point for each of these possible conclusions was that the nature of the appellant’s complaints called for a thorough investigation. Such an investigation, counsel submitted, did not take place.

As we understand the submissions which we have been discussing, it did not matter whether such an investigation would have led to a conclusion that Cook and Lyons (particularly) had engaged in conduct which established the cause of action pleaded against them; or, indeed, whether the appellant’s account of events at SHTOG was found to be accurate or not. Rather, a thorough investigation, for one reason or another, would have resulted in the appellant’s removal from SHTOG.

But then counsel submitted, relying upon observations made by the judge at [144], [146] and [176] in his reasons, that a thorough investigation by Button and/or Henry would inevitably have led to the conclusion that because of mental illness the appellant was unfit for operational duties. For that reason she would have been taken away from SHTOG.[29]
[29]This contention was raised more than once in counsel’s written outline of submissions.

In answer to the Court’s question, counsel stated that he had not submitted below that a thorough investigation would have led to the appellant being removed from SHTOG simply because the extent of her mental ill-health would have been ascertained. This underlines, we think, the appellant’s essentially opportunistic reliance upon the judge’s uninvited observations.

It was, as we understand it, part of the submission mentioned at [175] that the environment at SHTOG was in fact ‘toxic’, and harmful to her; or else that she perceived it to be ‘toxic’, and this was harmful to her. The submission then proposed, as we understand it, that in either event the appellant’s continuance in the particular work environment was harmful to her. Had she been removed from the environment the bullying – actual or perceived – would have stopped.

Counsel submitted, in this connection, that failure by Button and/or Henry to properly investigate was the cause of injury.[30] He contended that this had been pleaded. He sought to make use of particulars to establish this point, disregarding the substantive pleading to which the particulars related.
[30]This was said to be the gist of the appellant’s case below at [83] of the appellant’s outline of submissions.

When Maxwell P asked what would have come out of a thorough investigation – was is that there had been some bullying, for which reason the appellant should be removed from SHTOG, or was it that the appellant had overreacted to events in SHTOG – counsel replied that ‘either would work’. That answer was, we think, compatible with the appellant’s written outline of submissions, where it was variably contended that – (1) accepting the judge’s findings with respect to Cook and Lyons, any investigation would have reached the conclusion that the appellant’s complaints ‘were an artefact of her mental illness’;[31] (2) an investigation would have arrived at the conclusion which the judge did, that the appellant was ‘so unwell that she should have been removed from duty;[32] and (3), accepting the judge’s findings relating to Cook and Lyons, even a moderately competent investigation would have revealed the extent of the appellant’s psychological problems, and she would have been removed from ‘a situation which was increasingly toxic’.[33]
[31]See appellant’s outline, [16] and [17].
[32]Appellant’s outline [34].
[33]Appellant’s outline [44].

Questioned by the Court whether any doctor or other health professional had been asked to address causation of injury in any of the situations just mentioned, counsel replied ‘no’. But he noted that in September 1996 a police medical officer had reported that the appellant had been stressed by her environment, regardless which version of events had been correct.

Counsel further submitted that, although the alternative case had not ‘been at the forefront at trial’, the appellant should be permitted to advance it. He particularly relied upon the fact that, as he asserted, the judge had made a finding that the appellant had at all times been unfit for operational duties. The judge, he said, could not make a finding – albeit uninvited - and end there. He had to consider what consequences flowed from the finding.

Counsel also relied upon Button’s evidence that if he had known that the appellant suffered from PTSD he would have sent her to a police medical officer to see if she was unfit. According to counsel, Button knew of that diagnosis by 20 June 1996; and yet the appellant had not been referred immediately to a police medical officer, and had not been removed from a work environment which was – or which she perceived to be – ‘toxic.’

Counsel submitted that the appellant had advanced below a case based upon her having been exposed to non-tortious but nonetheless harmful conduct. Then he retracted that submission, and added that he did not rely upon such an exposure now. That statement, we must say, did not accord with other submissions which he advanced.[34]
[34]For instance, he asserted that it had been submitted at trial that the appellant had been grossly affected by misconduct which fell short of being tortious.

Counsel further submitted that, although the judge had not dealt with the question of causation, he must have made a finding favourable to the appellant whichever factual situation concerning the workplace had been found to represent the true position. The appellant had been able to work in 1995; and by 1999 she had retired on account of ill-health.

In reply, counsel for the respondents submitted that nothing had been advanced by the appellant below to suggest that the judge should consider a case that a thorough investigation of the appellant’s complaints might have led to a conclusion that by reason of mental illness she was unfit for all operational duty. He contended that it was no more than assertion that such an investigation might have resulted in her being stood down. The police medical officer’s September 1996 report in fact suggested the contrary.

Counsel further submitted that there was evidence of what Henry had done, treating the matter as one of welfare. His conduct had been appropriate. Further, there was evidence that a later investigation by the Ethical Standards Department had resulted in a modest admonishment of Cook and Lyons. No different outcome should be hypothesised if Button or Henry had conducted an investigation of that magnitude.

Counsel submitted, again, that the so-called alternative case against Button and Henry was one of omission – that is, a failure to thoroughly investigate the appellant’s complaints. Difficult issues of causation, he submitted, arise in cases of omission. Here, analysis of causation would depend upon what conclusions should be reached as to the nature and legal quality of the events occurring in the workplace; and upon resolution of the question whether a thorough investigation would have led to the appellant being removed from SHTOG.

Counsel pointed out that, according to the submission for the appellant, Button became apprised of the appellant’s PTSD on about 20 June 1996. It was then, so the submission went, that in all the circumstances a thorough investigation should have taken place, which would have resulted in the appellant’s removal from SHTOG. But in fact the appellant did leave SHTOG at that time, only returning in late 1997 of her own volition, and on stringent conditions. By then, in any event, Cook had left SHTOG. Here again, counsel for the respondents submitted, a causation issue arose, an issue which would have been investigated with medical witnesses had the alternative case been put at trial.

We have set out the gist of the opposing submissions at considerable length. They illuminated the issue for our determination.

For reasons which we mentioned in the course of discussing the Statement of Claim, we are not in doubt that the bedrock of the appellant’s case as pleaded was that she had in fact been subjected to harassment, particularly by Cook and Lyons, such conduct being intended or calculated to cause her injury. It was not a case that she had been subjected to merely negligent conduct, still less to workplace friction which was not negligent. Neither again was it a case that she had not been subjected to harassment at all, but that it was an artefact of her mental illness; neither, yet again, was it a case that raised an admixture of those circumstances. The case against Cook and Lyons, as pleaded, must have failed once it was concluded either that they had not engaged in the conduct alleged, or else that they had not done so with the pleaded intent.

We next consider, for reasons which we earlier explained, that the pleaded case, so far as it concerned Button and Henry, was predicated on the fact of harassment by Cook and Lyons. What was pleaded was that the conduct and continued conduct of Cook and Lyons was caused by the inaction (rather than action, for the most part) by Button and Henry.

It is, in our opinion, plain that it was not pleaded against Button or Henry that either of them was negligent because of failure to investigate complaints by the appellant irrespective whether or not such complaints were found by the judge to represent the fact.

Neither, in our view, was it pleaded that a failure to investigate a complaint, whether or not the same was well-founded, was itself a cause of injury. Rather, the failure to investigate was said to have permitted the impugned conduct to occur and continue. It was that failure which was pleaded to be causative of injury.

We have referred earlier to the opening address for the appellant at trial. We have summarised the case pursued against the police officers at [100]-[102]. As we have explained at [111], the case as opened conformed with the Statement of Claim. The case was confined further - see [112] - by the way in which the question of injury was addressed. The possible relevance of vulnerability was really put to one side.

We also have referred earlier to the closing written and oral submissions for the appellant. It appears to us that the submissions conformed with the appellant’s case as pleaded and opened. It coincided also with the burden of the appellant’s evidence – which was that she had been harassed - and with the opinions of the doctors and the other health professionals whose opinions were predicated on the fact of harassment. We have analysed the passages, written and oral, in the closing submissions at trial upon which the appellant relied. For reasons which we have explained, we consider that they do not assist the appellant’s argument. At [124] we set out matters – almost all of which were pertinent to submissions advanced before us – which were not raised in written argument below. See also our analysis at [129]-[130]. As to the oral submissions advanced for the appellant below, the fragments relied upon by appellant’s counsel before us took the matter no further.

In all, we consider that it cannot be said that, at any stage in the proceeding which led up to and culminated in judgment, the appellant contended that she was entitled to succeed on one of the arguments which her counsel sought to advance before us. Neither, importantly, did the judge’s reasons suggest any such alternative case had been pursued. We are conscious of the allegation made by paragraphs 5 and 6 of the Notice of Appeal that the judge failed to consider claims raised by the appellant. But to our mind, the judge’s characterisation of the case raised by the appellant against Cook and Lyons accorded with what had gone before; and the only criticism which can be made of his treatment of the case against Button and Henry is that he conceived it too widely, and in doing so rejected a case - not advanced – that one or both men had acted in an unpleaded way in breach of a duty to take reasonable care for the appellant’s safety and not expose her to unnecessary risk of injury.

We next draw attention to what we consider is the improbability that the case sought to be articulated on appeal was raised below. Allowing that counsel’s submissions in this Court were, on their face, not always consistent, the alternative case involved multiple scenarios. They ranged from conduct by Cook and Lyons which was intended or calculated to cause injury to the appellant, to conduct by Cook and Lyons which was simply negligent, to conduct by the men which was non-tortious but apt to cause distress, to a situation in which the impugned conduct had not occurred, but had been an artefact of the appellant’s mental illness, to a situation in which there had been an admixture of varying elements of those circumstances. Further, the unifying factor, if it might be so called, was the failure by Button and Henry to thoroughly investigate the appellant’s complaints – regardless what the investigation might have revealed about the factual situation at SHTOG at a relevant time. For, it was said, the necessary incidental finding must have been that the appellant was unfit for operational duties – in consequence of which she would have been removed from SHTOG. It was argued that the failure to investigate was itself causative of injury, loss and damage rather than a failure to investigate being causative of harassment continuing.

It is, we consider, very improbable that such a multi–faceted alternative case could have been put but not understood by the judge to have been put, particularly as it so sharply contrasted with all that had gone before. It is also, we consider, very probable, had such a case been put in final address, that senior counsel for the first and third respondents would have submitted that it ought not be permitted.

It appears to us that the contention that an alternative case was advanced is unlikely to be disconnected with abandonment of the appeal against Cook and Lyons. The appellant was then caught by findings which denied her the ability to rely on the fact of harassment, and which implicated her as the cause of such tensions as arose within SHTOG in the period when she served there. This explains the amendment of paragraphs 4 and 5 of the Notice of Appeal so as to refer to the failure of Button and Henry to investigate the appellant’s complaints about the alleged conduct of Cook and Lyons.

We should refer to the appellant’s reliance on the matters of unchallenged or uncontradicted evidence set out in Annexure A of the Notice of Appeal. According to paragraph 8 of the Notice of Appeal, the judge erred in failing to make findings of fact favourable to the appellant in respect of those matters. Before us, it was

contended that they were at least evidence, additional to such finding as the judge made, of the ‘toxic’ environment at SHTOG in the relevant period.[35]

[35]At one point counsel appeared to submit that they were evidence of the Wilkinson v Downton cause of action which the judge resolved against the appellant. If he did so submit, we consider that the submission must be rejected.

As we understand it, on one approach at least the alternative case did not require, for its success, that the work environment had in fact been toxic. But presumably it could be argued that, if the work atmosphere was in fact tension-filled, it was the more likely to be deleterious to the mental health of a person who by reason of mental illness was unfit to be performing operational duties.

In our opinion, however, the appellant did not establish that the judge did not consider the matters set out in Annexure A. Nor do we consider he was obliged in the circumstances to make findings favourable to the appellant in respect of them.

At paragraph 151 of his reasons, the judge said explicitly that he had considered ‘all the numerous other events as alleged by [the appellant], both in her evidence and in her pleading.’ He ought not to have gone beyond consideration of her evidence, but what he apparently did was not to the appellant’s disadvantage. Then, at paragraph 163 of his reasons, he outlined the appellant’s case against Cook and Lyons, and at paragraphs 164, 173 and 174 he rejected it. We think it is implicit that he did consider the matters raised by Annexure A, and that he - (1) did not accept the appellant’s evidence, or (2) did not accept that it had the import for which the appellant contended, or (3), did not consider that it was necessary to reach conclusions about the particular ‘threads’ in order to reach a conclusion concerning the appellant’s claims against the various respondents. Perhaps, in light of paragraphs 60-63 of his reasons, the last alternative is the most likely.

Next, we do not agree that the judge did fail to deal explicitly with each of the matters particularised in Annexure A. He appears to have done so at least in respect of the substance of the matters set out in paragraphs (a), (b), (g) and (k).

Further still, we note that the matters set out in Annexure A, concerning which the appellant gave evidence, were with one exception all pleaded as particulars of harassment. But, as we have explained, the alternative use to which the appellant sought to put these matters on appeal, which was claimed to have been articulated below, is that they were particulars of negligent, or perhaps non-negligent, conduct by Cook and Lyons – that they were evidence of the ‘toxic’ atmosphere at SHTOG. That is another illustration of the difference between the pleaded case and the alternative case which was said to have been advanced at trial

We observed a little earlier that, if it be inferred that the judge did not make findings with respect to the matters alleged in Annexure A, it did not follow that he was obliged to make findings favourable to the appellant. The following considerations bear upon that conclusion.

The Statement of Claim contained 51 particulars of harassment on the part of Cook and/or Lyons. The judge specifically considered 40 allegations of harassment. Many of them were unparticularised. He concluded that the appellant was an unreliable witness. For that or other reasons he rejected her evidence in respect of most of the 40 incidents which he considered. A review of the particulars of harassment which were alleged by the statement of claim, the matters with which his Honour dealt, and the matters set out in Annexure A, implies that there were a considerable number of particularised allegations about which the appellant presumably gave no evidence. All this could bear upon the likely reliability of her evidence about the matters specified in Annexure A, even if those matters were not specifically put in issue by the respondents.

We should next address the contention for the appellant that the learned judge actually found there have been a ‘toxic’ environment at SHTOG, and would have done so a fortiori if, as submitted, he had been obliged to find that the incidents referred to in Annexure A had taken place. Although, as we observed earlier, on one approach at least the appellant’s ‘alternative case’ did not seem to require that there been such an atmosphere, we do not agree that his Honour’s conclusions justify the submission which was made.

Whilst his Honour accepted, in substance, that there had been a degree of tension in SHTOG in the relevant period, he found that relatively few of the appellant’s allegations had been established, even in part. He also found that Cook and Lyons had acted in different ways to diminish, rather exacerbate, any tension. We consider, in the event, that counsel’s characterisation of the workplace environment was a considerable overstatement. We are of the same opinion with respect to counsel’s submission that the judge found many of the circumstances of which the appellant gave evidence to be established. It was very much the contrary.

We have noted that counsel placed much stress on the judge’s uninvited finding, as it was said to be, that the appellant had been unfit for operational duties from the time she began service at SHTOG. A number of points need to be made. First, the finding was made with the benefit of hindsight, as the judge explicitly said on one occasion. Second, it is not correct to say, the judge having expressed an opinion with the benefit of hindsight, that it is the conclusion which Button and/or Henry must have reached in mid 1996. Third, contrary to the submission for the appellant, it was not the judge’s task, even if he had made an explicit finding otherwise than with the benefit of hindsight, to follow an unpleaded and unargued case so as to arrive at a conclusion favourable to the appellant. Fourth, so far as the judge made a finding, it was a finding that the appellant was unfit for operational duties as a policewoman in 1995. It was not tied to the circumstances of her employment at SHTOG. On the alternative case, that would raise another causation issue.

We have not so far referred to the matter raised by ground 3 of the Notice of Appeal. It was not mentioned by either counsel in their ‘new case’ submissions. It arises out of the judge’s finding that Busiko – who, according to the judge’s reasons, was a particular friend of the appellant and whose judgment may have been thereby clouded – had ‘failed to listened (sic) to the SHTOG members’ version of events concerning the [appellant’s] relationship with other members of group’, and that he became the ‘weak link’ in passing on information to Button.

Ground 3 contends that the judge should have held Victoria liable for the conduct of Busiko, which impacted on the behaviour of Cook and Lyons towards the appellant.

This was surely a new case. Victoria’s liability was, by the statement of claim, predicated on its having caused, and permitted the continuance of, harassment of the appellant, largely by omission to act. By the statement of claim, the authors of the relevant inactivity were identified as Button and Henry; and their defaults were particularised. More than that, the judge noted at paragraph 179 of his reasons that –

Busiko is not a party to the present proceedings. Indeed the plaintiff through her counsel, positively averred at trial, that there was no evidence of any negligence on the part of Busiko.

Yet by this ground of appeal the appellant sought to make use of Busiko’s conduct to impose vicarious liability on Victoria.[36]

[36]The debate about the ‘servant’s tort’ and the ‘master’s tort’ theories of vicarious liability - see the recent discussion by Walker, Vicarious Liability for Exemplary Damages: A Matter of Strict Liability (2009) 83 ALJ 548 554-556 – could not explain the appellant’s evident change of position.

We should not pass from dealing with the alternative case argument without making one further observation. It appears to us the case as articulated by counsel for the appellant would have been doomed to failure in any event. As we have explained, the evidence of the doctors and other health professionals did not address the existence of a causal link between the various scenarios which were posited and the onset or worsening of any mental illness (not just PTSD) from which the appellant suffered. As has often been emphasised, in considering proof of causation all the evidence must be considered. In an injuries case, proof of causation is not the exclusive domain of the doctors. Even so, the evidence of the doctors and other health professionals was obviously important in proof of causation in this case. As the alternative case was sought to be put, the appellant must have relied on the evidence of such persons to show that she had been unfit for operational duties from the outset of her service in SHTOG; and we think that she must have relied on the evidence of such witnesses to show that a presumed serious mental illness was made worse by operational duties. It is not self-evident that a person unfit for operational duties generally would become any more ill or any more unfit for such duties simply by engaging in them – whatever be their incidents.

In all, the appellant’s case might have succeeded as it was pleaded and conducted. But it did not, and unappellably so. It might have been differently pleaded and conducted. But it was not. If differently pleaded and conducted, it might have succeeded. But the occasion to consider whether it might have done so did not arise. Whilst it is impossible not to have sympathy for the appellant, whose mental health at least from 1995 has been variably poor, they are the realities of the situation.

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[2009] VSCA 294

30 November 2009