Hardy v Mikropul Australia Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6790 of 2008

STUART JOHN HARDY	Plaintiff
v
MIKROPUL AUSTRALIA PTY LTD	Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	23, 24, 28, 29, 30 October, 1, 4, 9, 18 November 2009
DATE OF JUDGMENT:	3 March 2010
CASE MAY BE CITED AS:	Hardy v Mikropul Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 42

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NEGLIGENCE – Industrial accident – Psychiatric injury - Scope of duty of care owed by an employer to employee – Alleged failure by employer to prevent drug/alcohol culture of fellow employees said to be a breach of employer’s duty of care – Rostering of employee away from home for long periods – Employer has no duty to intervene in employees’ after hours activities - Not reasonably foreseeable that work for extended periods away from home may cause psychiatric injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.K. Meldrum QC with Mr P.A. Clarke	Clark, Toop & Taylor
For the Defendant	Mr D.J. Curtain QC with Ms R. Annesley	Minter Ellison

HIS HONOUR:

Introduction

Stuart Hardy, the plaintiff, is in the late stages of alcoholism and, according to his treating psychologist, has lost the will to recover. He suffers from severe depression and is said to be actively suicidal. He has not worked for over five years and is unlikely to work again. He claims that his depression, associated alcoholism and drug addiction were caused by the negligence of his employer, Mikropul Australia Pty Ltd (“Mikropul”), the defendant.

Mr Hardy commenced work as a service technician for Mikropul in February 2000 and continued in its employ for a period of approximately four and a half years. As part of that work, he and fellow employees were required to travel to regional Victoria and interstate for prolonged periods of time, staying in accommodation arranged by Mikropul. During periods away, some of the fellow employees, in their own time and after work hours, indulged in smoking marijuana and drinking alcohol, as did Mr Hardy.

Mr Hardy asserts that Mikropul breached its duty of care by requiring him to work away from home for lengthy periods of time. He says these extended absences, in addition to being exposed to the “drinking and drug culture” of his fellow employees, led to a major breakdown in early 2003 and ultimately, his cessation of employment in 2004.

Mikropul denies that it was negligent. It says that being away from home was an essential requirement of Mr Hardy’s job, a requirement he knew of when he accepted employment with Mikropul. Further, it says it has no responsibility for activities undertaken by its employees after hours and, in any event, there is no causal link between his time away, the after hours activities and his depression. Mikropul contends that Mr Hardy’s voluntary consumption of alcohol and marijuana led to the breakdown in his mental state. Alternatively, Mikropul argues that there was contributory negligence on the part of Mr Hardy.

The issues which require determination

The three asserted breaches of duty[1] alleged against Mikropul are -
[1]T911-912.

(a) requiring Mr Hardy to work regularly at distant locations, separated from his family, for lengthy periods of time while knowing that in his spare time he would be mixing with other workers who were likely to be consuming excessive amounts of alcohol and drugs;

(b) requiring Mr Hardy to be away from home for extended periods with the knowledge that doing so was causing him injury;

(c) failing to prevent or limit the consumption of alcohol and/or marijuana after hours by Mr Hardy’s fellow employees, rendering Mr Hardy vulnerable to the use of alcohol and/or marijuana.[2]

It is said, on Mr Hardy’s behalf, that these breaches, or a combination of one or more of them, have materially contributed to a massive psychological breakdown resulting in the development of his alcoholism and, to a lesser extent, perpetuating his addiction to marijuana.

[2]This must refer to Mr Hardy’s own use of alcohol and marijuana.

Mikropul’s allegation of contributory negligence on the part of Mr Hardy has two components. First, when Mr Hardy was appointed service coordinator in August 2002, he was responsible for the rostering of employees on regional and interstate assignments. It is said that he contributed to his own injury in rostering himself away for lengthy periods of time, especially given that he was in the best position to know about his psychological state. Secondly, it is said that, insofar as Mr Hardy’s present condition can be attributed to his own use of drugs and alcohol, he did so voluntarily and, in doing so, was contributorily negligent.

As I see it, the issues which must be addressed in assessing whether Mr Hardy can recover damages are as follows:

(a) What was the scope and content of the duty of care owed by Mikropul to Mr Hardy and, in particular, did it extend to the control of fellow employees in their recreational activities undertaken outside work hours? The third allegation, (c)[3] assumes that the duty extends that far.
[3][5] above.

(b) Was it reasonably foreseeable that Mr Hardy would suffer a recognisable psychiatric injury as a result of being rostered away from home for extended periods?

Assuming recognisable psychiatric injury was foreseeable in the circumstances, did Mikropul’s duty extend to preventing such injury?

If yes, how would a reasonable employer have responded to the risk posed, given the nature of the work performed by Mr Hardy?

(c) If breach is established (i.e. if the response of Mikropul was not that of a reasonable employer), was that breach of duty a cause of Mr Hardy’s psychiatric injury?

Background facts

The following matters, I think, are uncontroversial. In any event, this summary represents my findings of fact.

Mr Hardy was born on 15 October 1966 and educated to the end of Year 5. In 1985 he commenced his first job as an apprentice chef which lasted two years.[4] He then worked as a reelman with Progress Press for about ten years, with the exception of a one year break when he took up a welding job. He sustained two injuries at Progress Press; one a left wrist dislocation which healed without any residual disability, and the other a more significant injury to his back. He resigned in the early 1990s while in receipt of workers compensation payments for his back injury.[5]
[4]T4.
[5]T4.

In the mid-1990s, Mr Hardy moved to what he described as “a shack” on a worm farm at Baynton near Lancefield with his partner, Amanda (who later became his wife).[6]
[6]T32-34.

On 29 March 1996,[7] their first child, Mason, was born. Four months after his birth, Amanda returned to work at the bank, having obtained a new position at Romsey, four days per week.[8] For the most part, Mason was raised by Mr Hardy, who remained at home. On 9 July 1998,[9] Caileb was born and was also raised by Mr Hardy, who was the full-time carer for both children.[10] On 25 March 2000, Mr Hardy and Amanda married.[11]
[7]T25.
[8]T33-35.
[9]T26.
[10]T35-36.
[11]T118.

Some time after Mason’s birth, Mr Hardy was offered casual employment with Mikropul. The offer was made to Mr Hardy by Mr Shane Cross, the service manager. Mr Hardy took on the job, which involved travelling to various industrial plants around metropolitan Melbourne and Victoria. He rarely stayed away from home. He worked in this capacity until 1999[12] when he undertook a year’s full-time employment with a friend as a “jack of all trades” at a wool store. His role at the wool store predominantly required the driving of a mobile crane.[13]
[12]T42-44.
[13]T44.

Mr Hardy’s back problems continued to have some effect on him in the period following his departure from Progress Press. He received regular injections of pethidine for several years and at times he would wear a back brace.[14]
[14]T33.

In February 2000, Mr Hardy approached Mikropul seeking re-appointment on a full-time basis. He was initially engaged as a contractor. On 7 March 2000 he commenced a full-time position as a service technician under the direction of Mr Cross.[15]
[15]Exhibit P21.

At that time, the Mikropul operation in Victoria was relatively small. It employed a service manager, service co-ordinator, two technicians, other maintenance staff (at times supplemented by casual employees), two sales persons and office staff. There were two service vans and a twin cab utility provided for the service coordinator.[16] Mr George Hobday, the general manager of the Victorian division, was Mr Cross’ direct supervisor.
[16]T51.

In early 2000, the Hardy family moved from Baynton in central Victoria to Vermont, a suburb of Melbourne.[17]
[17]T342.

In August 2002, Mr Hardy was promoted to service co-ordinator.[18]
[18]Exhibit P21.

A third son, McKenzie, was born on 13 December 2002. An emergency occurred during the birth and Amanda underwent a caesarean section delivery.

On 16 December 2002, Mr Hardy commenced his annual leave, which had been extended to 17 January 2003 by arrangement with Mr Cross.[19]
[19]T643.

In early January 2003, whilst on holiday at Batemans Bay, Mr Hardy suffered a major psychological breakdown (which ultimately resulted in him taking time off work for nearly four months). On his return home on 15 January 2003,[20] he saw his general practitioner, Dr Pretty, and was admitted that afternoon as an inpatient at Maroondah Hospital (“Maroondah”).[21] For approximately three weeks from 17 January to 8 February 2003, Mr Hardy was an inpatient at Delmont Private Hospital (“Delmont”) under the care of Dr Thacore, a psychiatrist.[22]
[20]Exhibit P14.
[21]Exhibit P17.
[22]Exhibit P17.

In March, April and May 2003, Mr Hardy attended meetings at Mikropul concerning the continuation of his employment.[23]
[23]Exhibit D12.

On 20 May 2003, a meeting was held at Mikropul. In addition to Messrs Hardy, Cross and Hobday, a union representative, a Mr Bradley of AMWU and an employer’s representative, Ms Pells of AIG, attended. It was agreed that Mr Hardy would initially return to work for three days a week.[24]
[24]Exhibit D12.

Subsequently, on 3 June 2003, Mr Hardy returned to work on a graduated basis for three days a week,[25] the other two days upon which he attended a drug and alcohol rehabilitation program at Delmont.
[25]Exhibit D13.

On 28 May 2003, Dr Thacore forwarded a letter to Mr Cross certifying Mr Hardy as fit to return to work three days a week. On 27 June 2003, Dr Thacore sent a second letter certifying Mr Hardy as being fit to return to work on a full-time basis.[26]
[26]Exhibit P16.

From July 2003 to October 2004, Mr Hardy worked full-time as the service co-ordinator. He spent a considerable time away from home in 2004, particularly while working at the Alcoa Plant in Portland.[27]
[27]Exhibit D4.

Mr Hardy last worked with Mikropul on 21 October 2004.[28] He was absent from work on Friday, 22 October 2004 and then saw Dr Pretty on Monday, 25 October 2004.[29]
[28]Exhibit P20.
[29]Exhibit P14.

On 27 October 2004, Mr Hardy was admitted as an inpatient to Delmont due to severe depression. He was discharged on 1 November 2004.[30] On 3 November 2004, Mr Hardy was re-admitted to Delmont and discharged on 19 November 2004.[31]
[30]Exhibit P17.
[31]Exhibit P17.

On 8 February 2005, Mr Hardy was admitted to the Victorian Addiction Centre (“VAC”). At this time, Mr Hardy separated from Amanda[32] and, upon discharge, moved into Oxford House, an alcohol-free residential facility, for the purpose of rehabilitation.[33]
[32]T332.
[33]Exhibit P2.

Whilst at the VAC, Mr Hardy was seen by Ms Dianne Perrett-Abrahams on the referral from his general practitioner, Dr Pretty.[34] She has continued to treat him since that time.
[34]Exhibit P1.

In October 2005, Dr Pretty referred Mr Hardy to Dr Botvinik, a psychiatrist, who has seen him every two to three weeks since that time. Dr Botvinik and Ms Perrett-Abrahams have continued to manage his psychiatric illness.

In early 2006, Mr Hardy commenced a retraining course in drug and alcohol counselling at Holmesglen TAFE, but was unable to complete it. Mr Hardy had remained free of alcohol and marijuana until approximately the end of 2006. However, he eventually succumbed and has been addicted since.

In January 2007, Mr Hardy was again admitted to the VAC as an inpatient. He became highly depressed and suicidal, and was transferred to Melbourne Clinic Private Psychiatric Hospital. After attempting to discharge himself from that clinic, he was certified and admitted to St Vincent’s Hospital as an involuntary patient due to his high risk of self-harm/suicide.[35] He readmitted himself to the Melbourne Clinic for detoxification, but only lasted a few days.
[35]T410.

In March 2007, Mr Hardy made a serious suicide attempt and was admitted as an inpatient to Box Hill Hospital for a period of several days. Following discharge, he continued to use cannabis and was re-admitted to the Melbourne Clinic in June 2007. He was then transferred to the VAC for a four week rehabilitation programme.[36]
[36]Exhibit P8.

During 2007, intervention orders were taken out against Mr Hardy by his brother and Amanda. In June 2008, Mr Hardy was placed on a diversion plan by the Magistrates’ Court at Ringwood following his breach, on three occasions, of an intervention order obtained by Amanda.[37]
[37]Exhibit P7.

Since October 2007, Mr Hardy has been in a relationship with Ms Narelle Speedie. They live in Vermont South with Ms Speedie’s daughter.

In late February and April 2008, Mr Hardy, in another attempt to detoxify, was admitted to the Melbourne Clinic for treatment of substance abuse issues.

On two further occasions in April 2008, he was again admitted to the Melbourne Clinic.

For two to three weeks in November 2008, Mr Hardy travelled to Europe for a holiday.

Mr Hardy has received a wide range of different types of medication to control and medicate his psychological state. Since ceasing work, Mr Hardy has had major psychological and substance abuse issues requiring intensive medical treatment. He has attempted to commit suicide on several occasions and has become withdrawn and depressed. His libido is reduced. Stress aggravates his condition.

Witnesses and the evidence adduced at the trial

Evidence was given by Mr Hardy, his former wife Amanda, current partner, Narelle Speedie, and two fellow service technicians, Mr David Williams and Mr George McElroy. In addition, the reports of Dr Botvinik and Ms Perrett-Abrahams, were tendered and each gave evidence. The medical records of Dr Pretty,[38] the treating general practitioner, and Delmont Private Hospital[39] were also tendered. A number of other medical reports (of both treating doctors and medico-legal experts) were also tendered.
[38]Exhibit P14.
[39]Exhibit P17.

Mikropul called its general manager, Mr Hobday, the service manager, Mr Cross, as well as the current service coordinator, Mr Marc Taylor to give evidence. In addition, Dr Barrisi, who treated Mr Hardy at the VAC, also gave evidence.

Mr Hardy’s case

Mr Hardy gave evidence that his major job away within Victoria was at the Alcoa smelter at Portland which, on average, involved spending a week away from home.[40] In addition, he carried out jobs at Point Henry, Echuca, Ballarat, Bendigo, Rochester, Kiawah and Wonthaggi.[41] He travelled interstate to Launceston in Tasmania, the Mitsubishi plant in South Australia, to Port Pirie in South Australia, and on one occasion to Perth.[42]
[40]T51-53.
[41]T55-56.
[42]T56–57.

According to Mr Hardy, when Mikropul employees were away they were usually accommodated at motels. He said he complained about sharing a motel room and, approximately 12 months later, each employee was allocated a separate room.[43]
[43]T60.

Mr Hardy said that both alcohol and marijuana were consumed by his fellow employees after hours on regional and interstate trips. The alcohol consumption was significant[44] and a number of his fellow employees would partake in the use of marijuana.[45] Mr Hardy estimated that the drinking could be anything up to a dozen bottles of beer (stubbies) and sometimes bourbon.[46] The alcohol and marijuana was normally consumed by the employees congregating in one room or out in a courtyard.[47] Prior to his breakdown in 2003, Mr Hardy would smoke marijuana after a job, but not before work.[48] He said he used marijuana to mask his upset at being away from home.[49]
[44]T59.
[45]T60.
[46]T63–64.
[47]T64.
[48]T63.
[49]T59.

Mr Hardy said that it was important to him to keep contact with his young family, and he would ring home each night.[50]
[50]T65.

Mr Hardy said that he constantly asked Mr Cross to reduce his time away.[51] He said, when taking on the job as coordinator, that Mr Cross had promised him that “you can choose when you go and there will be less travel”.[52] He told Mr Cross “I used to tell him in passing that it was a pain and it was getting to me and I used to - my favourite line was, it’s like I’ve got a limb removed. Leaving my kids”,[53] to which Mr Cross responded “It’s part of the job”.[54] Mr Hardy could not recall making this complaint to anyone else in authority.[55]
[51]T65.
[52]T65-66.
[53]T66.
[54]T66.
[55]T79.

Mr Hardy said that when on holiday at Batemans Bay in early January 2003, he started drinking alcohol (a dozen cans of mixed spirits) and tried to drive his car over a cliff.[56] He described his emotional state at the time as being weaker as a result of being away from his kids.[57]
[56]T77-78.
[57]T78.

After his return from Batemans Bay, he saw Dr Pretty and told him: “I was dreading going back to work”.[58] He was referred to Maroondah where he spent three days and was then transferred to Delmont.[59]
[58]T79.
[59]T80.

According to Mr Hardy, in March 2003, he attended a meeting at Mikropul which was attended by representatives of Mikropul, a union representative and a representative of an employer organisation. He told those present at the meeting that he was enrolled in a drug and alcohol rehabilitation outpatients’ course.[60] It was agreed that he would be given one month to obtain a certificate clearing him for his pre-injury work.[61]
[60]T83, Exhibit P17.
[61]T83.

When Mr Hardy returned to work in June 2003, he went back to his original position as a service coordinator.[62] In the period when he was working three days a week, he was not required to travel. On the days he was not working, he attended an outpatients’ course for drug and alcohol rehabilitation at Delmont.[63] Once he received his medical clearance to return to full-time work at the end of June, he commenced working away again, particularly at Portland, and often at the request of the client.[64]
[62]T84.
[63]T88.
[64]T85.

After his return to work, he had a dry period abstaining from alcohol and marijuana but then became depressed and resumed smoking marijuana and drinking alcohol within a month or two.[65] His depression returned to the extent that at one stage he intended to jump off the Westgate Bridge but decided not to.[66] He increased his consumption of marijuana to 50 or 60 joints a week and his alcohol consumption to 12 stubbies after work each day.[67] This continued until he ceased work in late October 2004 and was again admitted to Delmont. There was no change in the after work hours consumption of alcohol and drugs by his workmates whilst away.
[65]T90.
[66]T92.
[67]T91.

The scope of the duty owed by Mikropul to Mr Hardy

Mikropul did not and could not dispute that it owed a duty to take reasonable care for the safety of Mr Hardy. Such a duty is often divided into categories which identify broadly the content of the duty (such as the provision of safe plant and machinery, a safe system of work, safe premises).[68] The High Court has said of that duty:
[68]See Glass, McHugh, Douglas “The Liability of Employers in Damages for Personal Injury” (2^nd Edition, Law Book Company 1979).

If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.[69]

In Andar Transport Pty Ltd v Brambles Ltd,[70] the High Court said of the employer’s obligation:

[The employer] possessed an independent personal obligation to take reasonable steps to ensure that a safe system of work was established and maintained for its employees.[71]

[69]Czatyrko v Edith Cowan University (2005) 79 ALJR 839 [12].

[70](2004) 217 CLR 424.

[71]Ibid [62]. See also [34].

The duty exists irrespective of where the work is carried out. In most claims involving an allegation of breach of duty on the part of the employer, the injury sustained by the employee (be it physical or psychiatric) occurs during the course of the employment and whilst carrying out the employer’s tasks. However, that is not exclusively the case, as the facts in this case demonstrate. The first and second allegations, (a) and (b) made by Mr Hardy and set out at [5] centre on the proposition that a duty was owed to Mr Hardy in relation to Mikropul’s rostering of employees for, at times, long periods away from home. However, the third allegation (c) raised different issues and it is convenient to deal with it now.

Did Mikropul’s duty extend to control of the after work hours activities of the fellow employees

The third allegation (c) is that Mikropul owed a duty to Mr Hardy to “prevent or limit the consumption of alcohol or marijuana after hours by fellow employees”. It is implicit in this allegation that Mikropul was required to exercise control either in the form of a direction to its employees, or to take disciplinary action, in respect of its employees’ activities outside of work. This does not fall within any of the standard categories marked out as forming part of an employer’s duty of care. Central to it is the notion that Mikropul was obliged to control the social behaviour, outside of work, of Mr Hardy’s fellow employees whilst away from home and carrying out work for Mikropul.

In Crimmins v Stevedoring Industry Finance Committee,[72] Hayne J said:
[72](1999) 200 CLR 1

The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm’s way and to do so in circumstances over which that employer can exercise control.[73]

In ACI Metal Stamping & Spinning Pty Ltd v Boczulik,[74] in dealing with the breadth of an employer’s duty, Kitto J emphasized the necessity for a connection with employment by reference to the following example:

If … a master gratuitously presents his servant with a theatre ticket, he is not master in respect of the servant’s exercise of the liberty the ticket gives him in the theatre, and accordingly he owes the servant no duty of care while there.[75]

[73]Ibid 98. See also McLean v Tedman (1984) 155 CLR 306, 313.

[74](1964) 110 CLR 372.

[75]Ibid 379.

Mikropul, as Mr Hardy’s employer, was not in a position to control the activities of its employees after work. Mr Williams, a fellow employee, said he did not think Mikropul had any power to tell him whether he should smoke or drink.[76] The service manager, Mr Cross, said he did not think he had any right to control the smoking of marijuana or drinking of alcohol outside work hours.[77] As he said, “I sort of couldn’t – can’t control what they do at night”.[78]
[76]T535-536.
[77]T671.
[78]T775.

There is no evidence that Mikropul had the power to control or restrict the activities of workers when off duty. That lack of control is generally a persuasive indication as to whether any legal duty is owed. There is also a practical consideration which needs to be considered – the likely reaction of not only the fellow workers but, undoubtedly, unions or workers’ representatives, at the suggestion that an employer should play a part in determining what employees do in their own time.

There are other issues to consider here in relation to both Mr Hardy and his fellow employees; the third allegation implies that the consumption of alcohol and marijuana by the fellow employees led Mr Hardy to use those substances. However, the responsibility of the individual for his or her actions and considerations of privacy are important in determining whether a duty was owed by Mikropul, as is now alleged. Mr Hardy and his co-workers were entitled to choose whom they associated with after hours and what they did in their spare time without the interference of Mikropul.

In Cole v South Tweed Heads Rugby League Football Club Ltd,[79] the High Court considered the issue of whether there was a duty to protect persons from harm caused by intoxication following their deliberate and voluntary decision to drink to excess. Cole did not involve an employer-employee relationship, however, the observations of Gleeson CJ are relevant to Mr Hardy’s contention that the duty of an employer extends to what occurs outside work in a private capacity:
[79](2004) 217 CLR 469 (“Cole”).

Most adults know that drinking to excess is risky. The nature and degree of risk may be affected by the extent of the excess, or by other circumstances, such as the activities in which people engage, or the conditions in which they work or live. A supplier of alcohol, in either a commercial or a social setting, is usually in no position to assess the risk. The consumer knows the risk. It is true that alcohol is disinhibiting, and may reduce a consumer's capacity to make reasonable decisions. Even so, unless intoxication reaches a very high degree (higher than that achieved by the appellant in this case), the criminal and the civil law hold a person responsible for his or her acts. ... Save in extreme cases, the law makes intoxicated people legally responsible for their actions. As a general rule they should not be able to avoid responsibility for the risks that accompany a personal choice to consume alcohol.[80] (Emphasis added)

His Honour also said:

Again, as a general rule a person has no legal duty to rescue another. How is this to be reconciled with a proposition that the respondent had a duty to protect the appellant from the consequences of her decision to drink excessively? There are many forms of excessive eating and drinking that involve health risks but, as a rule, we leave it to individuals to decide for themselves how much they eat and drink. There are sound reasons for that, associated with values of autonomy and privacy.[81] (Emphasis added)

[80]Ibid [13].

[81]Ibid [15], see also Boyded Industries v Canuto [2004] NSWCA 256.

In October last year, in C.A.L. No. 14 Pty Ltd (T/as Tandara Motor Inn) v Motor Accident Insurance Board,[82] the High Court again emphasised the difficulty of imposing a duty where it conflicts with the autonomy of the plaintiff or those engaged in a relationship with the plaintiff:
[82][2009] HCA 47.

This conflict does not arise where, for some supervening or overriding reason, a person who was owed the putative duty is not autonomous or fully autonomous – because, for example, some control must be exercised by the defendant over another person who either was vulnerable before the control was first exercised or has become vulnerable by reason of the control having begun to be exercised.[83]

The Court went on to say, in relation to autonomy and responsibility in the consumption of alcohol:

Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility.[84] (Emphasis added.)

[83]C.A.L. No. 14 Pty Ltd (T/as Tandara Motor Inn) v Motor Accidents Insurance Board and C.A.L. No. 14 Pty Ltd v Scott [2009] HCA 47 [38].

[84]Ibid [54].

The High Court rejected the notion that a publican owed a duty to a patron to control his or her excessive drinking. The relationship between the patron and the publican (which is contractual, the publican deriving income and, presumably, profit), I think, is far closer than that between the employer and off duty employees engaged in their personal activities after work hours.

Most members of the community would, I think, be surprised, if not stunned, by the proposition that an employer has a role to play in an employee’s life away from the workplace. Australia is a pluralistic and relatively free society in which individuals must make choices for themselves (good or bad). The role of an employer does not intrude into all of an employee’s activities, particularly those involving personal matters. Perhaps the situation was best summarised by Mr Taylor (a friend of Mr Hardy and a fellow employee) in an answer he gave in cross-examination to Mr Hardy’s counsel in response to a question relating to drinking after work: “Every man was free to do what he wished”.[85]
[85]T607.

Counsel for Mr Hardy sought to address this issue by reference to Mikropul’s acknowledged power to prevent an employee from going on site if affected by alcohol or drugs. Indeed, an example of this occurred in 2008 when a Mikropul coordinator at Portland stood down two employees who reported for work when apparently under the influence of alcohol.[86] This was said to be an example of the employer’s ability to restrict the out of hours drinking habits of its employees. However, I think this contention misses the point in two aspects. First, the element of control was exercised at the workplace – when the employees reported for duty. Second, and more significantly, the purpose of exercising this power was directed to the performance of the employee’s job and the associated safety of the employee and others at the worksite. It was not intended to act as some de facto proscription of the employees’ social habits during their own time.
[86]T774-775, T805-806.

Counsel for Mr Hardy also emphasised questions of occupational health and safety on the job, suggesting that an employer who wished to promote a drug and alcohol-free workplace should, as part of its duty, monitor the activities of its workers outside the workplace. (He referred to the issue of Mikropul carrying out random drug testing on its employees).[87] But that is not Mr Hardy’s case. His case is not based upon the effects of the consumption of drugs or alcohol upon particular workers and how it may affect their work, but rather on the effect of the conduct of fellow employees upon him after work. No question of occupational health and safety arises.
[87]T776-778.

If (and I am doubtful whether the evidence ever established this proposition positively) Mr Hardy’s depression was contributed to in some way by being in the proximity of his fellow employees who drank alcohol and smoked marijuana, that proximity was a result of a choice made by him. Mr Hardy did not have to associate with his colleagues and drink alcohol or smoke marijuana with them; he was not forced or coerced into behaving as he did – he chose to do so.

There may be cases in which an employer’s duty of care extends beyond the workplace itself. However, consistent with what was said in Boczulik, the duty cannot extend any further than where the impugned conduct is, in truth, an integral part of the employment duties, and certainly not to the extent of an employer being able to dictate to its workers what they should or should not do after hours.

Accordingly, whilst an employer may have an obligation to an employee outside the workplace, the contention within allegation (c) that this obligation extends to controlling or directing fellow employees’ activities out of hours must be rejected.

Mikropul’s duty in relation to rostering Mr Hardy away from home for long periods

The two remaining allegations (a) and (b) relating to Mr Hardy being rostered away from home for extended periods, however, fall within an employer’s duty, as I will now endeavour to explain.

The duty to provide a safe work environment extends to places an employer may reasonably foresee an employee frequenting away from the workplace,[88] however, it is confined to an employee’s activities performed “in the course of his employment”.[89] In ACI Metal Stamping & Spinning Pty Ltd v Boczulik,[90] Kitto J said:

… ‘the course of the employment’ is not a narrow conception. It extends beyond the period of work to every situation in which the master sustains the character of master towards the servant.[91]

[88]Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110.

[89](1964) 110 CLR 372, 378.

[90](1964) 110 CLR 372.

[91]Ibid 378.

The rostering of employees (whether at the employer’s workplace or at other sites) is part of the system of work devised by the employer. One aspect of Mr Hardy’s employment duties required him to stay at distant locations for a day or up to a week at a time. This part of the system of work was devised by Mikropul which, therefore, owed Mr Hardy a duty of care in relation to its system of rostering employees on regional or interstate trips as its employees were obliged to undertake these trips in the course of their employment. Therefore, allegations (a) and (b) are tenable, although for reasons I have already discussed, even if one accepted that Mikropul knew of the consumption of alcohol and drugs by its employees, it had no obligation to control their conduct after work.

It is necessary to examine the factual matrix closely so as to resolve the questions of foreseeability and the content of Mikropul’s duty of care in light of allegations (a) and (b). The following issues require resolution:

(a) the reliability of a number of the witnesses;

(b) the medical evidence, importantly that of Mr Hardy’s treating medical practitioners relating to his psychological condition between 2000 and 2004;

(c) the amount of time Mr Hardy spent away when employed by Mikropul;

(d) Mr Hardy’s use of marijuana and alcohol both before and during his time at Mikropul;

(c) the complaints made by Mr Hardy concerning working away from home;

(e) the problems (if any) Mr Hardy experienced in carrying out his work during the period of his employment;

(f) Mikropul’s knowledge, from any source, of Mr Hardy’s risk of suffering from a recognised psychiatric injury both before and after the 2003 breakdown;

(g) Mikropul’s knowledge of its workers consuming alcohol and drugs after hours.

The reliability of certain witnesses
Mr Hardy

Mr Hardy’s evidence was inherently unreliable. There were many instances where Mr Hardy’s account of events were demonstrably inconsistent with the established facts. For example, in his affidavit[92] sworn to support his serious injury application under the Accident Compensation Act (“the Act”), he asserted that he spent six to eight months a year away from home and was primarily accommodated at “pubs and hotels”. Whilst the evidence established that he spent time away, the periods of absence were nothing like six to eight months a year and only occasionally was he accommodated at a hotel. The schedule produced by Mr Cross, which I accept to be accurate, establishes this situation.[93] When confronted with this inconsistency, Mr Hardy replied “I just took a guess”.[94]
[92]Exhibit D3.
[93]Exhibit D4.
[94]T222.

Indeed, that affidavit[95] is replete with inaccuracies. Mr Hardy swears to the following:

Between the years 2000 and 2003, although I managed in a full-time role, I began to become stressed, anxious, depressed and started to drink a great deal and also to take marijuana. The travelling was becoming very stressful and I was becoming depressed and suffering psychologically.

The implicit, if not explicit, suggestion in this statement that Mr Hardy commenced to use marijuana as a result of the anxiety and depression caused by his travelling whilst at Mikropul is just plain wrong or, to put it bluntly, false.[96] Further, on his own account at trial, he did not resume drinking alcohol until just prior to the 2003 breakdown;[97] indeed on the history provided in January 2003 to staff at the two admitting hospitals, Maroondah and Delmont, the cause of the breakdown was his withdrawal from the use of marijuana, rather than its use.

[95]Exhibit D3.

[96]See [129]-[139] below.

[97]T77-78.

Mr Hardy’s evidence as to his abstinence from alcohol after his 2003 breakdown was extraordinarily inconsistent. At one point in evidence-in-chief, he said that it was a month or two after his return to work that he returned to drugs and alcohol.[98] Then in cross-examination he said that he gave up drinking for just short of two years, i.e., up until 2005.[99] In statements made by him to Dr Thacore in November 2004, he said that he had relapsed into drinking alcohol excessively in about April 2004.[100]
[98]T90.
[99]T123.
[100]Exhibit P15.

Mr Hardy’s evidence about his smoking of marijuana prior to joining Mikropul was also confusing and inconsistent. For example, in evidence-in-chief, he said he was a very light smoker. Then, in cross-examination, when asked whether he smoked marijuana at Baynton, he initially said no,[101] but shortly afterwards said he did. Then he said that for a while he did not smoke at Baynton at all, and then that there was a small period when he did.[102] His description of being “a social smoker” was quite inconsistent with the histories provided to his medical practitioners in January 2003.[103]
[101]T171.
[102]T172.
[103]See [106] – [112] and [115] – [122] below.

Mr Hardy was adamant in his evidence-in-chief[104] and in cross-examination[105] that he had told Dr Pretty on 15 January 2003 that his breakdown was due to his separation from his family. There is, however, no such record in Dr Pretty’s notes.[106] One would have expected, if this was the gravamen of the cause of his breakdown, for it to be mentioned.
[104]T79.
[105]T152.
[106]Exhibit P14.

In his evidence, Mr Hardy denied that his brother had a drinking problem or had used illicit drugs.[107] Yet included in a history he gave to Dr Thacore,[108] as well as in answers to a questionnaire, are statements to the effect that his brother was a “dope addict” and an alcoholic.[109]
[107]T119, 128, 134.
[108]Exhibit P15.
[109]Exhibit D1, T129.

There are other examples of unreliability in his evidence which I will identify in due course.

Notwithstanding these inconsistencies, I formed the impression that when he gave evidence before me, in general Mr Hardy was trying to answer questions frankly, but that his recollection and intellectual cogency were impaired, at times significantly. When Mr Hardy gave evidence, particularly in cross-examination, it became readily apparent that after about 20 minutes, he became agitated and visibly shaken (to the extent that the tremors in his hands were quite apparent). Despite his apparent ability to understand the questions he was being asked, it was clear at times that his recollection of events was either missing or, alternatively, confused.

The evidence of his treating psychologist, Dr Perrett-Abrahams, explained, to a considerable extent, Mr Hardy’s position. Dr Perrett-Abrahams said that Mr Hardy was in the late stages of alcoholism,[110] was physically depleted, and living from drink to drink with a diminished tolerance of alcohol. This, she said, led to a number of issues, including –
[110]T183-184.

- an inability at times to give cogent answers;

- ruminations as to his predicament;

- impoverishment of memory; and

- losing the thread of a conversation very easily.

She said that each of these characteristics is exacerbated when Mr Hardy is under stress. For example, giving evidence would be particularly stressful for him.

This opinion was subsequently confirmed by his treating psychiatrist, Dr Botvinik. Dr Botvinik’s observation of Mr Hardy is that when he is in a stressed condition, it is far more difficult to extract coherent information from him as his attention, focus and ability to recall details is obviously impaired.[111] Dr Botvinik had noted in particular that this trial had caused Mr Hardy considerable stress.[112]
[111]T391.
[112]T413.

Accordingly, whilst I think that Mr Hardy was, essentially, endeavouring to do his best, his evidence is replete with examples of exaggeration and inaccuracy. I do, however, accept that in the main these flow from his condition, rather than any deliberate intention to deceive.

Given these observations, where there is a contest in relation to his evidence, it is necessary to look for other evidence upon which to resolve these conflicts.

Amanda Hardy

Counsel for Mikropul also criticised the reliability of the evidence of Mr Hardy’s former wife, Amanda, who answered numerous questions in cross-examination with responses such as “I don’t know” or “I can’t recall”. She has been through a very difficult time, raising three young children, whilst, for some portion of it, coping with a husband who was collapsing psychologically, and later dealing with the stress of separation and ultimately divorce. She has been forced to take out at least one intervention order against Mr Hardy and is now the mother of a fourth infant child. When all these matters are taken into account, I think her inability to answer a number of the questions put to her by counsel was understandable.

Whilst I do not think she endeavoured to mislead the Court in her evidence, there are, however, parts of her evidence that I do not accept, particularly that relating to her advising Mr Cross that her husband was having difficulty coping with being away from home. However, I do accept her evidence that at some point she mentioned to Mr Cross that Mr Hardy was undergoing drug rehabilitation. I deal with these matters in greater detail subsequently.

Mr Cross

The attacks on the credibility of witnesses were not confined to witnesses called to give evidence in Mr Hardy’s case. Counsel for Mr Hardy was strongly critical of the evidence of Mr Cross, the service manager.

Mr Cross’ credit was attacked, broadly, on two fronts. First, it was submitted that there were inconsistencies between his sworn evidence and statements made by him in the past. In particular, his evidence that he had no knowledge that Mr Hardy was undergoing drug rehabilitation after his 2003 breakdown contradicted two out of court statements made by him. For reasons I shall set out, I reject Mr Cross’ evidence that he lacked knowledge of Mr Hardy’s involvement in drug rehabilitation after his breakdown in 2003; however, I am of the view that his credibility on other matters is not adversely affected by this conclusion.

Second, counsel for Mr Hardy was critical of Mr Cross’ credibility on the basis of the diary kept by him containing entries relevant to Mr Hardy. The diary entries for the first half of the year are solely confined to Mr Hardy and deal with no other work-related matters other than union issues involving Mr Hardy. The diary, as Mr Cross explained,[113] was comprised of “quick summary notes“ relating to Mr Hardy’s absence. Although I was initially sceptical of the contents of the diary, ultimately I am persuaded that the diary was kept by Mr Cross as a record of his dealings with Mr Hardy. My scepticism flowed from the fact that the diary, during the relevant period (from January 2003 to July 2003) only relates to Mr Hardy. There were no entries concerning any other employees or other work-related matters. This was surprising, given that Mr Hardy had not lodged a workers’ compensation claim, nor had he demonstrated any behaviour which would require such entries to be maintained. Nevertheless, the evidence of both Mr Cross and Mr Hobday that Mr Cross was under instructions to keep notes of his dealings with Mr Hardy[114] persuaded me that this was in fact the case and the diary was Mr Cross’ way of complying with his superior’s direction.
[113]T715.
[114]T644, T865, T884.

There were also conflicts between the evidence of Mr Cross and Mr Taylor and Mr McElroy as to Mr Cross’ use of marijuana whilst away. I set little store in Mr McElroy’s evidence and do not regard any conflict based on Mr Taylor’s evidence as reflecting adversely on the credit of Mr Cross.

Mr Cross was the subject of a lengthy, detailed and rigorous cross-examination. Notwithstanding my conclusion as to his knowledge of Mr Hardy’s involvement in a drug rehabilitation programme, my overall impression of other aspects of Mr Cross’ evidence was that it was reliable, particularly as much of it was supported by Mr Hobday.

Mr Hobday

Mr Hobday gave evidence on a number of matters relevant to Mr Hardy’s claim. His account of his dealings with Mr Hardy and his recollection of the events between 2000 and 2004 was not shaken in cross-examination. Indeed, in submissions, no attack was made upon Mr Hobday’s reliability as a witness. I should, however, mention one aspect of Mr Hobday’s evidence that requires an explanation. He said that he was not aware that Mr Hardy had undergone drug or alcohol rehabilitation after the 2003 breakdown. For reasons I will deal with in due course, I am satisfied that Mr Cross was aware that Mr Hardy was undergoing drug rehabilitation whilst on part-time duties in June 2003. Mr Hobday’s knowledge seems to have extended only to his awareness that Mr Hardy was in hospital for a problem with depression.[115] He said that the first he knew of Mr Hardy’s drug rehabilitation was after he had left Mikropul’s employment. I have reached no conclusion as to whether Mr Hobday was, in fact, informed of this fact and had forgotten it or, alternatively, whether the communication was solely with Mr Cross.
[115]T887.

Mr Hardy’s medical treatment between 2000 and early 2005

In this analysis, I have deliberately referred only to Mr Hardy’s treatment by doctors and in hospitals up to February 2005, generally contemporaneous with his employment at Mikropul. Thereafter, he was, as I have mentioned, treated by Dr Botvinik, psychiatrist, and Ms Perrett-Abrahams, psychologist. Each gave evidence that his chronic depression was related to his time away from home whilst at Mikropul. Drs Stern, Serry, Epstein and Wiseman, medico-legal consultants, reached a similar conclusion. These doctors, however, were primarily reliant upon the accuracy of Mr Hardy’s account of his symptoms and their relationship to his employment.[116] Accordingly, I have put their opinions to one side for the purpose of the analysis of issues of foreseeability and the content of Mikropul’s duty of care.[117]
[116]E.g. Dr Epstein was given a history that Mr Hardy “began to smoke cannabis as a way of dealing with loneliness and anxiety”.
[117]Of course their evidence is relevant to questions of causation and damages.

Dr Court

Dr Court practiced at the Wheelers Hill Clinic. His report was tendered and he was not required for cross-examination. He first saw Mr Hardy in August 2000 for a left thumb injury and saw him again in November 2000 and January 2001 in respect of that injury. In May 2001, he saw Mr Hardy for left chest wall pain associated with an injury at work and, at that time, he also had pain in his neck and left arm which settled over ten days. In March 2002, Mr Hardy was seen with what would appear to be a recurrence of his hand dermatitis and, when last seen by Dr Court in April 2002, his hands were better.

Dr Court specifically has no record of any problems associated with stress or anxiety, nor of any connection between Mr Hardy’s work and any psychological problem.

Dr Pretty

Dr Pretty, a general practitioner at the Vermont Health Care Clinic, treated Mr Hardy from January 2002. He did not give evidence. However, Mr Hardy’s clinical records were tendered through another doctor at the clinic, Dr Mary Jackson.[118] Dr Pretty is recovering, after a year’s absence from work, from a major health issue. I was satisfied, upon hearing Dr Jackson’s evidence, that there was a reasonable explanation for his absence.[119]
[118]Exhibit P14.
[119]T450.

Within Dr Pretty’s notes were a number of medical reports relating to Mr Hardy’s treatment and prognosis, as well as the original file notes.[120] According to Dr Pretty’s report of 28 July 2005,[121] Mr Hardy first attended his practice on 3 January 2002 and was prescribed Campral to aid in his withdrawal from marijuana dependence. He was next seen on 8 January 2002 suffering from insomnia and prescribed a course of diazepam. Mr Hardy was seen on three other occasions for various ailments during 2002 (e.g. on 7 October, he saw Dr Pretty with a history of pain in his left shoulder, neck and upper chest).
[120]Reports dated 28 July 2005, 25 March 2007 and 22 June 2008.
[121]The computerised records of the clinic commence on 7 October 2002. However, Dr Pretty’s report reveals previous attendances commencing 3 January 2002.

On 7 January 2003, he saw Dr Pretty with a history of “some chest pain and crying at times, takes a lot of marijuana and would like to get off it”. Dr Pretty diagnosed Mr Hardy with depression and marijuana withdrawal. Mr Hardy returned on 15 January when it was noted that he was “feeling suicidal at times, gets angry, teary all the time”. Dr Pretty made a diagnosis of acute depression and referred him to Maroondah.

Dr Pretty saw Mr Hardy again on 26 February, 5 March and 1 April of that year – which appear to have been, at least in part, reviews of his psychological state.

On 19 May 2003, Mr Hardy saw Dr Pretty with a sore throat and apparent dermatitis. He again saw Dr Pretty on 7 July with a sore throat and headache. He was not seen again until 17 February 2004 when he had apparently hurt his back at work and then had to drive home for four hours with a worsening of the pain. A diagnosis of acute lower back pain was made and a WorkCover certificate issued. He was referred to a physiotherapist.

On 1 March 2004, he saw Dr Pretty with a history of right chest pain, and on 2 April, with a history of severe dermatitis of both hands. On 14 May 2004, Mr Hardy saw Dr Pretty complaining of impotence and depression since being on Efexor. On 17 May 2004, Mr Hardy had recurrent right chest pain, and on 14 July, right knee pain for which he returned on 16 July. On 2 September 2004, Mr Hardy was noted to be feeling down and grumpy with “lethargy and has recently had some alcohol and pot. Would like to try Prozac”. He was diagnosed as having recurrent depression and a medical certificate issued for two days.

On 25 October 2004, (Mr Hardy last worked for Mikropul on the 21st) Dr Pretty noted:

Has been back on marijuana, alcohol and last night an ecstasy tablet, still takes Prozac, travelling a lot, some nausea, depression, not coping.[122]

He was given a medical certificate for five days. Dr Pretty referred Mr Hardy back to Dr Thacore, who arranged for him to be admitted to Delmont.

[122]Exhibit P14.

Mr Hardy saw Dr Pretty on three subsequent occasions in November 2004, during which time he had been an inpatient at Delmont. On 1 December 2000, Dr Pretty noted:

Feels work has contributed to his illness by being away a lot and using substances, alcohol in particular, has been mostly off alcohol two to three only. Would feel lonely and depressed when travelling away from home. Has spent about five months a year away from home.[123]

Dr Pretty issued a WorkCover certificate.

[123]Exhibit P14.

On 22 July 2005, presumably as part of his preparation for his subsequent reports, Dr Pretty noted that Mr Hardy had -

… explained to me in the past, probably around 2001, he realised a lot of his problems related to frequent trips away with work that may account for up to four to five months per year when he was away from home. He often felt lonely, bored and depressed, and that he wasn’t at home much to support his wife and care for his young children, and resorted to drinking alcohol and sometimes marijuana. He felt that his environment away from work brought him into contact with other work personnel using alcohol and other substances that made it easy for him to slip into a substance abuse style when away from home. Mr Hardy felt that he couldn’t say much about his situation to his employer for fear that he may have his job at work at risk. He felt during one whole day that he didn’t want to return to work and became depressed at the thought of returning to the same work situation.[124]

[124]Exhibit P14.

In his report of 28 July 2005, Dr Pretty provided the following opinion:

I believe it is likely that his alcohol dependence was triggered by depression which would be consistent with difficulties coping with long periods of time away from his wife and children in an environment where loneliness, boredom and alcohol were present.[125]

In a report to the WorkCover agent also of 28 July 2005, under the heading “Relationship to employment”, Dr Pretty said as follows:
Mr Hardy suffers from severe depression, anxiety and associated substance abuse problems. It seems likely that these symptoms could have been triggered by a work environment where he tells me that up to the equivalent of four or five months each year are spent away from home. When he is away, he feels lonely, bored and depressed, not being able to support his wife and young children emotionally or physically, and he has nothing to do when he is away staying in motel/hotel situations. Mr Hardy also has found that other members of his work, while away, have been associated with the availability of substances which has made it easier for him to participate also. He tells me that he has been concerned about complaining to his employer in case he could lose his job.[126]

[125]Exhibit P14, Report of 28 July 2005.

[126]Exhibit P14, Report of 28 July 2005, apparently in relation to a WorkCover conciliation.

Several conclusions can be reached based on the evidence contained in Dr Pretty’s reports and clinical notes. First, during the period Mr Hardy worked with Mikropul, there was no suggestion by Mr Hardy to Dr Pretty that time away from home or his association with other Mikropul employees was a cause of his depression or substance abuse. This is notwithstanding the fact that he saw Dr Pretty on numerous occasions for psychological and other unrelated physical ailments, including obtaining a worker’s compensation certificate in relation to a work-related injury. Second, at no time did Dr Pretty communicate with Mikropul, either by way of letter or certificate, alerting it to any psychological problem suffered by Mr Hardy that may be connected with his work. Third, at about the time he ceased working for Mikropul, Mr Hardy attributed his problems to the times spent away from home (albeit that the actual periods of absence described by him are not substantiated by the evidence). Finally, in his reports of December 2004 and July 2005, Dr Pretty diagnosed severe depression and was prepared to attribute Mr Hardy’s psychological condition to his work.

Maroondah Hospital

A considerable portion, if not all, of Maroondah’s records are to be found within the Delmont clinical records.[127] Having seen Dr Pretty on the morning of 15 January 2003, Mr Hardy was admitted to Maroondah at 3.00pm, after presenting himself at the accident emergency ward. He was noted to have become increasingly distressed, suicidal and homicidal over the previous two weeks. In the history provided on admission, it was noted, “Stuart has a long history of poly drug abuse – formally smoking THC every day. Ceased 8 days ago”.
[127]Exhibit P17.

Mr Hardy was admitted as a voluntarily patient. The provisional diagnosis made by the psychiatrist was of “THC dependence – withdrawal syndrome and depressive episode with borderline personality traits noted”. Auditory and visual hallucinations were observed on the evening of 15 January. When referred on to Delmont, he had no psychiatric symptoms but still had suicidal thoughts and was noted to be labile in mood, with irritability, tearing and anxiety.[128]
[128]Exhibit P17.

This history was consistent, to an extent, with Mr Hardy’s evidence that he gave up smoking marijuana in late 2002 because he did not want to expose his sons to his habit.[129]
[129]T144.

There is no record of Mr Hardy relating his problems to work, particularly being away from home, at Maroondah.

Delmont Private Hospital

Mr Hardy was transferred from Maroondah and admitted to Delmont in the afternoon of 17 January and discharged on 8 February. He was managed by Dr Thacore.

Upon admission, the psychiatrist noted[130] that Mr Hardy had a “regular” marijuana history since the age of 16 and had stopped drinking alcohol approximately six years previously, but started again after his third son was born. In the psychiatrist’s admission form, the following is recorded as the reason for admission:

depression, suicidal ideation. Put on Sipromil - … depression – two years – smoking marijuana. Stopped smoking Jan 1 → depression worse, went to New South Wales for 1/52 – tipped the scales.[131]

The clinical team’s admission form notes:
Stuart’s decision to cease using TCH 17 days ago and has become increasingly depressed with S.I. in last week.

[130]Exhibit P17.

[131]Exhibit P17.

The diagnosis recorded in the discharge summary notes suicidal thoughts, cannabis use, generalised anxiety disorder and panic attacks. In the psychiatrist’s admission form, Mr Hardy is described as the service coordinator at Mikropul, engaged in full-time work but presently on holidays. However, there is no suggestion that on this admission, Mr Hardy’s depressive condition and suicidal ideation had any relationship to work or being away from home. Rather, the clear impression gleaned from the records is that his depression had worsened as a result of his decision, on new year’s day, to stop smoking marijuana.

On his subsequent admission, on 27 October 2004 (after he had ceased work at Mikropul), the clinical team took the following history: “stressed at work. Going away too much. … Need to keep away from certain individuals at work who use alcohol and cannabis”.[132] The reason for admission was noted by the psychiatrist to be “alcohol dependence – relapsed. Drinking 12-24 stubbies daily”.
[132]Exhibit P17.

Dr Thacore

Dr Thacore has practised for over 40 years as a consultant psychiatrist. He saw Mr Hardy at Delmont in January and February 2003 after he had been transferred from Maroondah.[133]
[133]T473-474, Exhibit P15.

When Dr Thacore initially saw Mr Hardy on 18 January 2003, he regarded him as being suicidal.[134] In his report of 17 June 2005, he noted that:

Stuart said that he had been smoking marihuana (sic) for several years and that he wanted to stop doing it. He said, however, that marihuana was not an issue. He said that his current problems were that he was getting anxious, depressed and suffered from episodes of panic. He said that he felt that people looked down on him and that he had poor self-esteem. He also admitted that he had a problem with his temper and was dwelling on past thoughts and regrets. He said that he had been drinking excessively and had felt suicidal. He said that he felt that his ‘life was a bucket of water with sludge stirred up’. Stuart said that he had never got over things and that smoking marihuana masked them.[135]

[134]T460.

[135]Exhibit P15.

In the initial history Mr Hardy provided to Dr Thacore at Delmont, Mr Hardy did not identify recent alcohol abuse as an issue.[136] Nor did Mr Hardy make any mention to Dr Thacore of the “attempted suicide” at Batemans Bay.
[136]T466.

Dr Thacore’s evidence as to when he was first told by Mr Hardy that there was a link between his employment and either his psychological state or his consumption of marijuana and alcohol was confusing.

Dr Thacore said that he had discussed with Mr Hardy his return to work and advised him not to go back to his job.[137] In his report of June 2005, the following appears:
[137]T483.

Initially Stuart said that he did not relish the idea of going back to his former job as it took him away from home and the loneliness caused him to smoke cannabis as all his colleagues did at the end of the day. However, having considered other options he decided to gradually ease himself into his old job and he returned to work in early June 2003.[138]

He also noted:
His current job was a service contractor for South Australia, Victoria and Tasmania. His job entailed travelling and staying away from home for extended periods which he claimed was the source of his problems.

This account, taken in the context of the report, would appear to have been provided by Mr Hardy at the first consultation at Delmont in January 2003.

[138]Exhibit P15.

However, in both evidence-in-chief and cross-examination, Dr Thacore said that the first time Mr Hardy connected work with his use of marijuana or alcohol was upon his return to see him after almost a year – in November 2004, after he had left Mikropul.[139] In January 2003, Mr Hardy told Dr Thacore that he had poor self-esteem and his “life was like a bucket of water with the sludge stirred up”.[140] Dr Thacore agreed that he had never once been told by Mr Hardy that work was a problem during the time he treated him in 2003[141] and that the first time he was told of the problems about being away from home with people who were drinking and using marijuana was in November 2004.[142]
[139]T459-460, T477.
[140]T476.
[141]T481
[142]T482.

Then, in re-examination, Dr Thacore said that it was in 2003 that he had first been told by Mr Hardy that the job involving travelling and staying away from home for extended periods was attributed by him as the source of his current problems.[143]
[143]T485.

It is particularly difficult to resolve these confusing answers. Dr Thacore was not able to locate his own notes,[144] however my reading of his report, as I have said, unaided by his viva voce evidence, points directly to the account that links Mr Hardy’s work to his problems, being given in January 2003 by Mr Hardy. On the other hand, there is no mention of any connection between work and his condition in the Delmont or Maroondah clinical records in 2003 in which several histories were taken from Mr Hardy.
[144]T485.

Moreover, the correspondence between Dr Thacore and Mikropul (which I will now set out) contains no reservations about Mr Hardy’s return to his former duties, which would seem at odds with what Dr Thacore had been told by Mr Hardy, if indeed this occurred in January 2003.

On 2 April 2003, Mr Hardy was provided with a letter by Mikropul seeking a medical clearance for him to resume his job.[145] Attached to that letter was a service technician/co-ordinator job description which included, under the heading “Responsibilities”, the following:

Travel to and carry out preventative maintenance and servicing and all necessary repairs to all makes of dust collection equipment on various industrial sites in Melbourne, Victoria and interstate as directed. Travel will be either by company vehicle, aeroplane, ship or train.

[145]Exhibit D15, T654.

On 23 May 2003, Dr Thacore issued a certificate stating that Mr Hardy was fit to return to work. On 28 May 2003, Dr Thacore wrote to Mr Cross. The relevant parts read:[146]
[146]Exhibit P16.

Thank you for four (sic) letter dated 28^th instant regarding his medical certificate.
I did issue a certificate dated the 23^rd May 2003, stating that Mr Hardy was fit to return to his employment. Mr Hardy came under my treatment for a depressive illness on the 18^th of January this year and remains under my treatment. He recovered from his illness sooner than anticipated.
I had not viewed your letter and job description attachment dated 2^nd April 2003 until you faxed a copy of it to me today, as Mr Hardy had given that letter and attachment to Dr Martin Lloyd Jones, his treating physician.
Having viewed and discussed the job description with him, I confirm that I consider Mr Hardy fit to return to his pre-illness duties three days a week, on Tuesdays, Wednesdays and Thursdays, as required, on a trial basis, and if found that he is functioning satisfactorily, he can resume full time duties in three to four weeks time.
He is not taking any medication which will interfere with his normal job function.
If I can be of any further assistance please do not hesitate to contact me. (Emphasis added.)

On 27 June 2003, Dr Thacore issued a handwritten certificate which was also provided to Mikropul and read as follows:[147]
This is to state that Mr Stuart Hardy is under my treatment. I reviewed him today. He has been working part time for four weeks now and with reference to your communications dated April 2^nd 2003 and May 28^th 2003, I consider him fit to resume his duties and normal job functions on a full time basis, as of today. (Emphasis added.)

[147]Exhibit P16, T459.

Mr Hardy was discharged by Dr Thacore on 8 February 2003. He noted that when he saw Mr Hardy on 12 November 2003, that:

He was keeping well and coping with his work and was not using cannabis or alcohol. He was also happy with his relationship with his wife and children. He was discharged from under my care with the understanding that he can contact me should the need arise.[148]

[148]Exhibit P15.

Dr Thacore did not see Mr Hardy again until shortly after he finished work with Mikropul. In 2004, Mr Hardy was admitted to Delmont on 27 October for four days. He was re-admitted on 3 November when he was seen by Dr Thacore. At that time, he told Dr Thacore that he had been admitted for detox as he had relapsed, again using cannabis and drinking alcohol extensively since April. He said that he had been using one gram of cannabis and consuming 12 to 18 stubbies a day and cited work, stress and travelling and staying away from home as the reason.[149] He was noted to have suicidal ideation.
[149]T460.

Dr Thacore continued to manage Mr Hardy’s psychiatric treatment until January 2005. His diagnosis was one of “cannabis and alcohol dependence within a background of a personality disorder”.[150]
[150]Exhibit P15.

I am not persuaded that Mr Hardy disclosed to Dr Thacore the existence of any connection between his work environment (whether it was being away or associating with his fellow workers or both) and his depression or drug/alcohol consumption until he saw Dr Thacore at Delmont in November 2004. His evidence, as I have set out, is inconsistent. There was nothing in the doctor’s evidence to suggest that he perceived that a return by Mr Hardy to his former duties would pose a risk to Mr Hardy’s health. Further, the doctor’s certificate and letters to Mikropul did not convey that his depression was related to work, and particularly not related to periods of working away from home, nor his exposure to the “drug and alcohol culture”. Moreover, such a history does not tally with the histories taken at Maroondah and Delmont in January 2003.

Mr Hardy’s alcohol and marijuana consumption prior to joining Mikropul in 2000

In evidence-in-chief Mr Hardy said that he commenced drinking alcohol, in very small quantities, with his father at age 14 and subsequently as a young man he “abused alcohol” drinking mainly beer and bourbon. However, he said that in the six years prior to joining Mikropul he had not drunk alcohol.[151] He gave it up because of its effects on his health and particularly his adverse stomach reaction.[152] Mr Hardy’s account of general abstinence from alcohol over the six years prior to joining Mikropul provided at Delmont in January 2003 is also consistent with his evidence.[153]
[151]T88.
[152]T58.
[153]Exhibit P17.

Amanda said that when she first met her husband in 1986, he would consume alcohol socially and she was not aware of him “abusing” alcohol prior to him commencing work at Mikropul.[154] She confirmed Mr Hardy’s evidence that he did not consume alcohol very often because it would cause him to have a stomach complaint.[155] When asked whether, whilst at Baynton, he had consumed alcohol “at all”, she replied, “Not to excess, no”.[156]
[154]T315.
[155]T316.
[156]T337.

Mr Williams described Mr Hardy as an “on and off” drinker up until the end of 2002.[157]
[157]T520.

I share Dr Botvinik’s scepticism that Mr Hardy, in fact, had a six year period of abstinence from alcohol before the end of 2002.[158] However, Dr Botvinik also made the point, which is relevant here, that he had no objective evidence to say whether or not Mr Hardy was a drinker.
[158]T418-419.

The report of Dr Court and the notes of Dr Pretty (both general practitioners who treated Mr Hardy), do not indicate a history of an alcohol problem prior to joining Mikropul.

I think it likely that Mr Hardy was generally abstinent and if he did drink, it was occasional. I conclude that he had no problem with alcohol in recent years and prior to joining Mikropul.

On a number of occasions Mr Hardy described himself as a social smoker of marijuana prior to the 2003 breakdown.[159] He said that he commenced smoking marijuana at age 16 or 17, usually as a cigarette.[160] Whilst at Progress Press he smoked joints regularly. He said that his heaviest use was in his twenties when he might have smoked 100 joints per week.[161]
[159]T145.
[160]T40.
[161]T73.

Mr Hardy’s evidence about his consumption of marijuana prior to commencing work at Mikropul was inconsistent and confusing. At one point, he estimated that in the 18 months prior to joining Mikropul he would smoke about 25 joints per week and whilst working part-time with Mikropul around five to six joints on the weekend.[162] In contra-distinction, he said at another point (shortly afterwards) that he was not consuming marijuana at all in the 12 to 18 months before he worked at Mikropul.[163] I have already referred to other inconsistencies in an out of court statement made by him on this issue.[164]
[162]T74-75.
[163]T75.
[164]See [73] above.

Mr Taylor, a fellow Mikropul employee, had known Mr Hardy since the early 1980s and confirmed that he was a regular smoker of marijuana.[165] Mr Williams also said that at visits to the farm at Baynton, there would usually be “a drink and a smoke”.[166] He agreed that Mr Hardy had always been a dope smoker as long as he had known him.[167]
[165]T577, 597.
[166]T521.
[167]T531.

When Mr Hardy saw Dr Thacore in January 2003 at Delmont, he gave a history of marijuana use which the doctor thought was “heavy”.[168] Dr Thacore accepted that consumption of three to four grams of marijuana per day meant that Mr Hardy had “substantial long-standing heavy use”.[169] Dr Thacore also agreed that the history conveyed to him in 2003 was to the effect that Mr Hardy had been a heavy user for many years.[170] The notes of Dr Pretty and those of Delmont demonstrate that, on Mr Hardy’s own account, he had real issues with his marijuana addiction and had made repeated efforts to reduce his consumption of the drug.[171] Moreover, the clinical records of Maroondah and Delmont, which note the history provided by him in January 2003, do not suggest that there was any reduction in his consumption of marijuana prior to 2000. Rather, they point to a chronic, significant habit.
[168]T461.
[169]T469.
[170]T475.
[171]Exhibits P14 and P17, T475.

I have concluded that prior to joining Mikropul, Mr Hardy was, contrary to his own assessment and his counsel’s submissions, a habitual heavy user of marijuana.

It is appropriate to add here that whilst there are several histories provided by Mr Hardy to medical practitioners of past depressive episodes, there is no evidence of Mr Hardy suffering from any diagnosed depressive condition or major anxiety state prior to working at Mikropul,[172] and, specifically, not prior to 2003.
[172]The report from his general practitioners’ clinics in Romsey and Wheelers Hill; Exhibits P3 and P4 and Dr Pretty’s notes, Exhibit P14..

Mr Hardy’s employment with Mikropul

Mikropul’s business involved the installation and servicing of dust collection equipment. It was based at premises in Scoresby which operated as a depot for its business.[173] In the main, its operations were conducted off site at industrial plants either installing or servicing dust collection equipment.
[173]T51.

Usually, the maintenance work involved a team of technicians attending at a client’s plant to conduct maintenance on the air filtration equipment. The job may involve changing filter bags, servicing equipment, or attending to a particular issue that had arisen.[174] The time spent on a particular job may occupy only some hours or, at times, several weeks.[175]
[174]T47.
[175]T49.

The servicing of dust collection equipment could be carried out by one employee or by a team ranging from one to four technicians with a service co-ordinator in charge of the group, depending on the job. Mikropul had contracts with a number of companies in regional Victoria, in particular at Alcoa Portland, Point Henry, Bendigo, Ballarat and Wonthaggi. Sometimes only a day away from home was needed – on other occasions, up to a week may have been required. It also had contracts with companies located interstate in Tasmania, South Australia and Western Australia which required its employees to spend time away. Mr Hardy knew there was some travelling involved in the job both locally and interstate.[176]
[176]T169-170.

The job description applicable to both a technician’s job and the coordinator’s job specifically referred to the requirement of regional and interstate travel.[177]
[177]See [123] above.

When Mr Hardy was required to stay overnight (or longer at a regional plant), Mikropul arranged and provided the accommodation. Invariably, each member of the Mikropul team would be accommodated at the one premises – usually a motel or motor inn. When away, Mr Hardy received a living away from home allowance, initially up to $25 per day and from 2002 a flat rate of $25 per day.[178]
[178]T223-224, T633.

At the time he was appointed to a full-time position as a service technician in March 2000, Mr Hardy would regularly travel to regional Victoria and, at times, interstate. This did not change after August 2002, when he was appointed to the position of service co-ordinator.

Mr Hardy accepted that although he loved his job, he probably could have obtained other employment if he had so wished.[179]
[179]T167.

The amount of time spent away by Mr Hardy when employed by Mikropul

At the outset of the trial, and for some time during its course, it appeared that there was a significant dispute between the parties as to the amount of time that Mr Hardy spent away. Indeed, as I have said, he had sworn in an affidavit supporting his serious injury application under s 134AB of the Act that he spent six to eight months away a year.[180]
[180]See [72] above.

Mr Cross gave evidence that he had spent nearly 30 hours in the days prior to giving evidence[181] examining source material resulting in a schedule which, in its final version (amended during the course of the trial), listed the days and places of Mr Hardy’s days spent away from home.[182] As I have said, in general, I regarded Mr Cross as a credible witness and have no reason to doubt that he has carried out or supervised the research which went into the production of this document. He was cross-examined at length[183] about the compilation of the document and I am satisfied that it is reliable and accurate. In summary, it produced the following result:
[181]T630.
[182]Exhibit D4, T630-634. The schedule also noted which employees were away with Mr Hardy on each particular job.
[183]T822-855.

(a) 1999/2000 tax year – Mr Hardy spent 10 nights away from home

(b) 2000/2001 tax year – Mr Hardy spent 59 nights away from home

(c) 2001/2002 tax year – Mr Hardy spent 39 nights away from home

(d) 2002/2003 tax year – Mr Hardy spent 21 nights away from home

(e) 2003/2004 tax year – Mr Hardy spent 66 nights away from home

(f) 2004/2005 tax year – Mr Hardy spent 30 nights away from home

I accept this record is accurate, both of the time spent away and the place of accommodation. On that point, it is to be observed that the vast bulk of the accommodation provided by Mikropul was at motels or motor inns, and only rarely at hotels.

The duration of time spent away from home by Mr Hardy varied considerably. There were many occasions when he was away for only one or two nights. However, there were occasions when he was away for three or four nights, or at the other end of the spectrum, up to ten or eleven nights (it seems to have been accepted that he returned home on the weekends unless he was interstate).

In the 2004 calendar year, Mr Hardy was away on some 56 nights away, many of which were spent working at Portland. On Mr Hardy’s account, his last working day at Mikropul was on Friday 22 October, after a week at Portland.[184] However, the schedule produced by Mr Cross[185] shows that he did not work away in that week. The last night upon which he stayed overnight was 14 October and his last working day was 21 October 2004.
[184]T93, T282.
[185]Exhibit D4.

Mr Hardy’s consumption of alcohol and marijuana during his time at Mikropul

To an extent, Mr Hardy’s case relies upon it being accepted that there was a significant increase in his use of alcohol and marijuana whilst at Mikropul. It was argued that this consumption masked his depression and was a direct result of his separation from his family.

Mr Hardy endeavoured to attribute his smoking of marijuana prior to the 2003 Batemans Bay breakdown to this time away from home. He then said that the 2003 Batemans Bay breakdown was caused by a crash in his mood related to his work. On his account, he started smoking marijuana and drinking heavily at Batemans Bay, which, in turn, led to his admission to Maroondah.[186] He said that within a few months after his return to Mikropul and having undergone his drug rehabilitation he had resumed a heavy consumption of marijuana and alcohol.
[186]T146.

I have already concluded that Mr Hardy used marijuana in significant amounts prior to joining Mikropul. There is, I think, no reliable evidence of a change in his pattern of marijuana consumption prior to the 2003 breakdown, other than his abstinence from it after New Year’s Eve which, in fact, appears to be the real cause of his breakdown.[187]
[187]See [106], [107] and [111] above.

The diagnosis of cannabis dependence was, I conclude, longstanding, albeit that he made attempts from time to time to cease his use of the drug. It is also consistent with Amanda’s account that when the family moved to Vermont in 2000 (around the time he commenced work at Mikropul), part of a backyard shed was used to cultivate marijuana plants and that Mr Hardy smoked marijuana in the shed.[188] Mr Hardy agreed that he grew marijuana at home in his shed, which was set up with electricity, lighting and heating;[189] in fact, it was a joint enterprise with Mr Williams, a fellow employee.[190] Such an endeavour is hardly consistent with the gradual onset of a depressive condition from 2000 to the end of 2002. Rather, it fits the pattern of long-term marijuana use.
[188]T339-340.
[189]T152.
[190]T229.

Analysis – was there a foreseeable risk of injury to Mr Hardy?

In Wyong Shire Council v Shirt[294] the High Court authoritatively stated the test of foreseeability in determining the content of the duty of care: “A risk which is not far fetched or fanciful is real and therefore foreseeable.”[295]
[294][1980] 146 CLR 40 (“Wyong Shire”).
[295]Ibid, [47]-[48].

In Koehler the Court said:

… The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.[296]

[296](2005) 222 CLR 44 [33].

Therefore, it is a question of whether a reasonable employer, in the position of Mikropul, would, at the relevant time - i.e. June 2000 to October 2004 - have foreseen that its conduct involved the risk of injury to the plaintiff. The High Court, in recent years, whilst acknowledging that Wyong Shire Council v Shirt remains the law in terms of the test of foreseeability,[297] has emphasised that in determining the foreseeability of risk, it is important not to apply “the prism of hindsight”.

In Rosenberg v Percival,[298] Gleeson CJ said:
In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated.

[297]State ofNew South Wales v Fahy (2007) 232 CLR 486 [56], Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [190].

[298](2001) 205 CLR 434, [16], see also Jones v Bartlett (2000) 205 CLR 166 [19], Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 [17], [109].

Last year, in Sydney Water Corporation v Turano, the High Court (French CJ, Gummow, Hayne, Crennan and Bell JJ), said in relation to reasonable foreseeability in the context of the existence and scope of the duty of care:

It remains, as Gleeson CJ observed in Tame v New South Wales, that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.[299] (Citation omitted).

[299](2009) 239 CLR 51 [45].

It is necessary to identify with some specificity the nature of the risk which must be foreseen. It is not sufficient to address the issue generally, although it is unnecessary for a defendant to foresee the precise risk of injury or damage or how it may occur.[300] In this case, each of the asserted breaches turns upon a risk which can be identified as follows; that Mr Hardy may suffer a recognisable psychiatric injury by reason of being away from home for protracted periods. Allegation (a)[301] postulates that the foreseeability of the risk of such an injury was enhanced by the fact that Mikropul knew that Mr Hardy was, in his off-duty time, mixing with other workers who were likely to smoke marijuana and drink alcohol to excess in his presence. The second allegation, (b),[302] posits that there was knowledge on the part of Mikropul that Mr Hardy was suffering injury – which must mean recognizable psychiatric injury.
[300]Graham Barclay Oysters Pty Ltd v Ryan {2002) 211 CLR 540, [87].
[301][5] above.
[302][5] above.

It may assist if I now summarise the findings that I have made relevant to the extent of Mikropul’s knowledge concerning Mr Hardy, his work environment and the risk of him suffering a work-related psychiatric injury.

(a) I am not satisfied that Mr Hardy made any complaint to Mikropul management, and in particular to Mr Cross or Mr Hobday, as to any problems associated with his absences from home.

(b) Prior to 25 October 2004, no medical practitioner was told by Mr Hardy that his psychological state and/or his alcohol and marijuana consumption was related to being away from home.

(c) Mikropul received no advice from any medical practitioner concerning Mr Hardy’s psychological wellbeing or his use of drugs or alcohol, as being connected to his employment duties.

(d) The advice provided to Mikropul by the treating psychiatrist in May and June 2003 did not suggest that Mr Hardy’s time away on work duties had any effect on his psychological state.

(e) The advice to Mikropul from the treating psychiatrist in June 2003 that Mr Hardy was fit to return to normal duties was not varied prior to his cessation of employment in October 2004.

(f) There was nothing in Mr Hardy’s work performance to suggest to Mikropul that his psychological state, or his consumption of alcohol or marijuana, was affecting his ability to carry out his job.

(g) Mr Hardy’s consumption of marijuana, with the exception of a period of abstinence after the 2003 breakdown, remained constant and consistent with his consumption prior to joining Mikropul.

(h) The 2003 breakdown was occasioned by a significant depressive episode whilst at Batemans Bay. However, I am not satisfied that this episode was related to his time away from home. I think it more likely that it was related to his withdrawal from the use of marijuana.

(i) Mr Hardy’s consumption of alcohol was minimal up until the 2003 breakdown. He then abstained from alcohol until a time around April 2004 when he resumed drinking and by October it was to excess.

(j) Mikropul was aware that Mr Hardy may have had an issue with alcohol in the past, but that at the time of his employment it was not a relevant matter.

(k) Mikropul was aware that Mr Hardy had required drug rehabilitation following his 2003 breakdown.

(l) In 2004, the amount of time spent away from home by its employees, including Mr Hardy, increased, and this was known to Mikropul.

(m) During 2004 and prior to 21 October 2004, Mr Hardy had approximately seven days absence from work; it was not suggested to Mikropul that these absences were connected to his psychological condition or any relapse related to drugs or alcohol. Nor is there any evidence that those absences were the result of a work related psychological condition.

(n) Mikropul was aware that its employees, when away and in the company of other employees, consumed alcohol and smoked marijuana regularly after hours and, at times, to excess.

(o) By 25 October 2004, Mr Hardy was sufficiently unwell to require further inpatient treatment for his psychological condition.

(p) Since late October 2004, Mr Hardy has attributed his psychological condition and his use of marijuana and alcohol to the time spent away from home and his association with other employees who smoked marijuana and drank alcohol.

(q) Since late October 2004, Mr Hardy has suffered from a significant depressive condition.

There is no evidence to suggest that prior to the end of 2002 Mr Hardy had any overt psychological symptoms or, for that matter, any increase in his consumption of alcohol or drugs, which might have suggested some problem. The contemporaneous medical evidence reveals a sudden breakdown in early 2003 accompanied by a break-out of alcohol abuse. His marijuana habit was longstanding.

Mr Cross accepted he would have been concerned about Mr Hardy “falling off the wagon” if he had known that he was attending drug and alcohol rehabilitation in 2003.[303] However, it does not follow that this would alert him to the risk of depression. Central to Mr Cross’ answers on this issue[304] was the suggestion that the 2003 breakdown was due to depression linked to his alcohol and marijuana consumption which, in turn, was linked to his time away from home. None of these propositions were established on the evidence. Contrary to the submission of Mr Hardy, the risk of psychiatric injury did not become foreseeable when, during 2003, Mr Cross became aware that Mr Hardy was undergoing drug rehabilitation. That fact alone was not enough to put Mikropul on notice that working away was a risk to his psychological state. It did not know of the nature or extent of his problem or details of its treatment. It was not told by Mr Hardy or by any of his treating doctors that associating with other persons who either smoked marijuana or drank alcohol, outside work hours, might compromise his psychiatric condition (if that be the case). To the contrary, Dr Thacore had provided Mikropul with a certificate stating that Mr Hardy was fit for his previous duties, which both he and Mikropul knew involved travel away from home. In October 2003 when Dr Thacore saw Mr Hardy, he discharged him as a patient and thereafter he had no treatment for his psychological state until 25 September 2004 when he complained to Dr Pretty about “smoking pot” and drinking alcohol (there being no apparent suggestion that this was related to work).
[303]T761, T762.
[304]T762.

I do not accept that Mr Hardy made complaints to Mr Cross or Mr Hobday about being away from home or about associating with fellow workers who smoked marijuana and drank alcohol. Moreover, nothing was placed in writing by Mr Hardy in relation to the problems he says he was experiencing as a result of being away. There was no claim for compensation during his period of employment. No medical certificate. No effort to involve the union to make representations as to his working conditions as he had done when he met with Mr Hobday and Mr Cross to endeavour to return to work. No effort to alter the roster.

As I have said, it may be from time to time that Mr Hardy “grizzled” to other employees about the demands of being away from his family. However, even if one accepted Mr Hardy’s account (which I do not) as to the complaints made to Mr Cross about being away from home, there is nothing, I think, which could lead a reasonable employer to then conclude that there was a foreseeable risk of psychiatric injury. A desire, no matter how forthrightly expressed, to remain at home rather than to travel away from home is insufficient to put an employer on notice that there may be a risk of psychiatric injury if the worker continues to work away from home.

Mr Cross’ concern for his employees’ increased workload in 2004 and to the possibility of burn-out does not mean that Mikropul, through Mr Cross, knew of the asserted relationship between Mr Hardy’s time away and his psychological state. Rather, his enquiry was based upon a generalised concern for the welfare of his employees.

The knowledge of the Mikropul management that its employees consumed alcohol or smoked marijuana regularly and on occasions excessively, whilst sharing accommodation with Mr Hardy does not make the risk of psychiatric injury foreseeable. Thousands of workers daily, I surmise, spend time away from home and are exposed to fellow workers or others consuming alcohol in a social setting (and, perhaps, to a lesser extent, smoking marijuana). That is part and parcel of working life in this country and, I also suspect, in many other countries. It is fair to surmise that it also occurs where employees do not travel – in the evenings they may associate socially with fellow workers who consume alcohol or smoke marijuana. How, I ask rhetorically, could an employer be expected to foresee that such an association would make it any more foreseeable that the worker would be subject to psychological injury? Accepting that Mikropul also knew that Mr Hardy had been the subject of drug rehabilitation, it is a significant leap to then say Mikropul should have appreciated that there was a risk of psychological injury, particularly where Mr Hardy’s treating psychiatrist had, after being asked by Mikropul, given him a clearance to return to his former duties.

In my view, bearing in mind the test laid down in Wyong Shire, a reasonable person in the position of Mikropul between March 2000 and October 2004

(a) would not have foreseen that the rostering of Mr Hardy away for lengthy periods may cause him psychiatric injury;

(b) would not have foreseen that the rostering of Mr Hardy away with other employees who, in their spare time, drank alcohol and smoked marijuana, at times excessively, may cause him psychiatric injury.

I also conclude that it was not known to Mikropul between March 2000 and October 2004 that Mr Hardy was suffering from a psychiatric injury as a result of being rostered away from home.

On these findings, Mr Hardy’s claim must fail.

Analysis: if psychiatric injury was reasonably foreseeable, what was the content of Mikropul’s duty?

If, contrary to my conclusion, it was reasonably foreseeable that Mr Hardy would suffer psychiatric injury as a result of being required to be away from home, then it is still necessary for Mr Hardy to demonstrate that in the circumstances Mikropul was obliged to take steps to reduce or minimize the risk of injury. I have set out the principles relating to the content of the duty at [216] to [222].

I previously recited the principles set out by the High Court in Koehler. It is, I think, worth extracting another part of the judgment relevant to this issue:

Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.[305] (Citations omitted).

[305](2005) 222 CLR 44 [36].

In Hegarty, Keane JA (Jerrard JA and Douglas J agreeing), in rejecting the plaintiff’s claim, said that the private and personal nature of psychological illness was an important consideration:

The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff's problems.[306]

Keane JA said further:

In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work.[307]

[306][2007] QCA 366 [43].

[307]Ibid [45].

The following matters are, I think, relevant to the determination of this issue.

First, the contract of employment. It was clear, as Mr Hardy knew, that the job entailed working away from home.[308] Necessarily he would at times be separated from his family. Many employees enter into such employment bargains which, as part of that contract, require an employee to be away from home and family.
[308]T169-170.

In the submissions on behalf of Mr Hardy, the following proposition is put – indeed, it is the lynchpin of the submissions:

This case is about depression suffered by Stuart as a result of him being forced to travel, not about Stuart drinking and drug taking per se.[309] (My emphasis).

The argument is based, as I think is the case, on a significant misapprehension of the relationship between Mikropul and Mr Hardy. He was not forced to go away for long periods – this was not the Soviet Union under Stalin or his successors. Australia is not a Command Economy. Mr Hardy, knowing the tasks he was to perform and knowing that he would be away frequently,[310] entered voluntarily into a contract of employment. He received extra remuneration for being away from home. He could have resigned if he wished. He did not have to return to work in 2003. He could have sought alternative employment. He could have asked Mikropul for a different position. To the contrary, he did everything he could in 2003 to return to work with Mikropul. The tasks he performed, whilst away, both before and after his breakdown, were performed in accordance with his contractual obligations.

[309]Para 2 of written submissions.

[310]T211.

At the time Mr Hardy entered into the contract, there was nothing to suggest to Mikropul that he could not perform his contractual obligations by reason of his psychological state. Nor, I have concluded, did anything change in terms of Mikropul’s perception of this fact.

Second, the nature of Mr Hardy’s employment. For several years, Mr Hardy worked as a casual employee for Mikropul. He had the opportunity to observe the manner in which the business operated, and particularly the fact that permanent employees were rostered away from home regularly. He chose to take the job knowing that it would involve travelling and knowing that he had a young family. He received additional pay for undertaking such work which was patently an incentive to engage in it. Whilst it may be that he thought that when he took on the position of service coordinator he could reduce his hours, he was not obliged to accept or remain in that position.

Third, in his capacity as service coordinator, Mr Hardy could have sought to restrict the time he was travelling away. True it is that there is a conflict between himself and Mr Cross as to the nature of his complaints about being away from home. Even if one accepted his account (which I do not), the lack of any further action on his part is important. He made no formal request for a change in his duties. He did not seek the assistance of the union. He did not complain to Mr Hobday, the general manager with whom he had a good relationship. When he returned to work in 2003, he resumed his old position as service coordinator knowing that he would necessarily have to travel.

Fourth, there was no reason why Mr Hardy could not change jobs if he wished. He accepted that he probably could have obtained other employment.

Fifth, there were no signs or warnings of any inability to carry out his work. In October 2003, he was discharged from the care of his psychiatrist, who noted that he was coping with his work satisfactorily. He did not seek any further psychiatric or general practitioner treatment for his psychological condition. He did not report any work-related psychiatric problems during his time at Mikropul to his general practitioner. Counsel for Mr Hardy sought to rely upon Mr Hardy’s absences from work in 2004 as demonstrating difficulties in carrying out his work. But his time off work during 2004 was consistent with other years and, in any event, the cause of these absences was never properly explained as I have discussed.[311] Certainly it was not established that the absences had any relationship to his work – at least in terms of a psychological disorder.
[311]The notes of Dr Pretty (Exhibit P14) indicate a number of different complaints during 2004 (physical and psychological), but none refer to psychological problems linked to work.

Sixth, it was no part of Mikropul’s duty to probe into Mr Hardy’s private life as Keane JA explained in Hegarty. If there was a problem of a psychological nature relating to work, then the appropriate duties for the employee could have been raised by his doctor with Mikropul (as often occurs in cases where workers suffer an injury or illness) and as occurred here when Dr Thacore provided the original certificate or when Dr Pretty certified him as unfit for work owing to a back injury. There was no obligation in these circumstances for Mikropul to investigate Mr Hardy’s personal issues.

In summary, even if the risk of psychiatric injury was reasonably foreseeable in the circumstances of this case, Mikropul’s duty did not extend to require it to take steps to minimize or eliminate that risk.

The remaining issues

It would not be appropriate to determine the question of breach of duty given my conclusions as to foreseeability and the content of Mikropul’s duty. Similarly, it is inappropriate for me to try to deal with issues of causation and contributory negligence where there are no findings of breach.

Conclusion

Mr Hardy’s claim must be dismissed and, subject to counsel’s submissions, Mikropul’s costs paid by him in accordance with s 134AB(28) of the Act.

[2010] VSC 42

3 March 2010