Johnson v Box Hill Institute of TAFE

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2013 04039

ROBERT JOHNSON	Plaintiff
v
BOX HILL INSTITUTE OF TAFE	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	8, 9, 10, 11, 12, 15, 16, 17 , 23 September 2014
DATE OF JUDGMENT:	12 December 2014
CASE MAY BE CITED AS:	Johnson v Box Hill Institute of TAFE
MEDIUM NEUTRAL CITATION:	[2014] VSC 626

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NEGLIGENCE — Workplace injury — Manual handling – Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) — Breach of common law and statutory duties — Contributory negligence —Psychiatric injury — Bullying and harassment — Alleged failure by employer to prevent bullying/harassment by supervisor during return to work — Scope of employer’s duty to prevent psychiatric injury — Whether employer’s response to risk of psychiatric injury adequate — Application of Koehler v Cerebos (Aust) Ltd Assessment of damages —Application of Malec v Hutton to assessment of damages — Interaction between physical and psychological injuries.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards QC with Mr G Worth	Slater & Gordon
For the Defendant	Mr D Curtain QC with Mr D McWilliams	Wisewould Mahony

HIS HONOUR:

Introduction

Robert Johnson, the plaintiff, was employed by the defendant, Box Hill Institute of TAFE (the TAFE) as a trade teacher up until March 2006.[1] In the last six years of his employment he alleges that he was required to engage in unreasonable manual handling resulting in injury to his back and neck (the manual handling claim). He also asserts that after he sustained the back injury he was bullied and harassed by his immediate supervisor, Rodney Williams, resulting in major psychiatric injury (the psychiatric injury claim). Mr Johnson claims that this injury resulted in him ceasing all forms of work from March 2006 onwards.
[1]First at the TAFE’s campus in Thornton Crescent, Mitcham (the Mitcham campus) and then at the campus in Elgar Road, Box Hill (the Box Hill campus).

The trial originally commenced before a jury. However, after I expressed concerns as to how questions of duty and breach in relation to the psychiatric injury claim could be resolved by the jury, the parties agreed that the case should proceed as a cause.

I regard Mr Johnson as a totally unreliable and unsatisfactory witness. Nevertheless, there is sufficient contemporaneous corroborative material to establish that he suffered a back injury in the course of his employment, caused by the common law negligence of the TAFE and the TAFE’s breach of its occupational health and safety obligations under statute.

As for the psychiatric injury claim, I reject the assertion that Mr Johnson’s supervisor, Mr Williams, intentionally bullied or harassed Mr Johnson. I accept that Mr Johnson and Mr Williams had a difficult working relationship after Mr Johnson’s back injury. However, I am not satisfied that this was due to bullying or harassment by Mr Williams. Rather, it was precipitated by a clash of personalities primarily fuelled by the attitude of Mr Johnson rather than any misconduct on the part of Mr Williams.

Notwithstanding this finding, there is one aspect of the psychiatric injury claim in which I think the TAFE breached its duty to Mr Johnson. I am satisfied that by mid-2005 the TAFE should have realised that Mr Johnson was suffering from a depressive condition due to the conflict between the two men and that their difficult relationship required intervention. The failure of the TAFE to take appropriate steps ultimately resulted in Mr Johnson breaking down at a work meeting in March 2006 with a further injury to Mr Johnson’s fragile psyche.

My reasons for these conclusions and the assessment of the damages recoverable by Mr Johnson now follow.

Background to Mr Johnson’s claims

Mr Johnson was born on 24 May 1955. He is single and has lived in Seville for many years. Prior to the period covered by this proceeding, Mr Johnson experienced a number of ongoing health issues, including ‘low back pain’, hypertension and obesity.[2]
[2]The clinical records of Dr Verhoef, commencing in 1994, record a past history of ‘chronic low back pain’ (Exhibit P10).

Mr Johnson originally trained as a motor mechanic, and from 1985 was a permanent employee of the TAFE as an automotive trades teacher in the Automotive Department.[3] Up until 2000, he taught at the Mitcham campus. From 2000 onwards, he taught at the Box Hill campus.[4]
[3]Sometimes referred to by witnesses as the Mechanics or Motor Mechanics Department.
[4]Transcript of Proceeding, Johnson v Box Hill TAFE (Supreme Court of Victoria, J Forrest J) 88 (T).

Mr Johnson is, by his own description, ‘a bit of a loner’.[5] Although he appears to have got on well with some of his fellow teachers and students at the TAFE. In the course of the trial it emerged that his relationship with other supervisors at the TAFE (apart from Mr Williams) in the years prior to 2003, and particularly in the late 1990s, resulted in considerable animosity and psychological upset on his part, to which I will later return.
[5]T213.

Until March 2003, Mr Johnson was able to cope both physically and emotionally with his work duties and apparently enjoyed teaching his students. He said of his experience teaching at the TAFE:

That was my life. I really, really enjoyed it. I had excellent working relationships with the students …[6]

and:
That job was me. I can’t really explain it there but I looked forward to going to the classes, I enjoyed imparting knowledge that I had to the students … it just suited my demeanour, I suppose, that I enjoyed teaching, passing on knowledge, skills [sic].[7]

[6]T82.

[7]T86.

Mr Williams confirmed Mr Johnson’s perception. He stated that:

Robbie was of great use to Box Hill and myself. He was one of our most experienced teachers …[8]

and:
I had the utmost respect for Robbie since I had met him and since we started teaching at Mitcham annex … he was a bit of a role model for me … [9]
[8]T651.
[9]T663.

The parties’ case at trial
The manual handling claim

The pleaded case was that the manual handling injury resulted from work between October 1999 and April 2006, when Mr Johnson was required to ‘repeatedly place undue strain upon his spine when undertaking heavy manual handling of engine components, transmissions components, assembled transmissions, engines and other items and equipment’.[10]
[10]Plaintiff’s Statement of Claim filed 7 August 2013, [3].

Notwithstanding the pleading, at trial the manual handling claim centred upon Mr Johnson’s employment after he was transferred from the Mitcham campus to the Box Hill campus in 2000. Essentially, Mr Johnson argued that when working in the large workshop where practical work was undertaken, he was required to lift and move heavy items from time to time (weighing anywhere from 1-50kg). He had neither mechanical nor physical assistance from other teachers and students.

Again, although the claim was pleaded on the basis of his work overall, the case pursued at trial was that there were four specific incidents which Mr Johnson alleged caused an injury to his back or an aggravation of his back condition. Each of these, he claimed, involved a breach of duty both under statute[11] and at common law.
[11]Specifically, the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) (the Regulations).

The first incident was in April 2002, when Mr Johnson was required to move an engine located on a mobile stand as the engine needed to be locked up overnight (the engine stand incident). Due to the weight of the engine and the allegedly defective rollers on the stand, the stand would not budge, and Mr Johnson injured his spine through his numerous attempts to push it.[12]
[12]T94-95.

The second occurred in early March 2003, when Mr Johnson strained his neck while demonstrating to students how to check a crank shaft for bend and twist (the crank shaft incident).[13]
[13]T104-105.

The third incident was in late March 2003, when Mr Johnson injured his back while attempting to restrain a heavy manual transmission which was sliding off a student’s work bench (the manual transmission incident). On the basis of Mr Johnson’s evidence, this incident appears to have caused the most immediate and severe injury.[14]
[14]T113.

The fourth and final incident occurred on or about 22 June 2004, after Mr Johnson was given a work schedule by Mr Williams which required him to engage in ‘heavy’ teaching work after a period of lighter duties. This ‘heavy’ work involved conducting practical lessons in the workshop concerning engine overhaul for two weeks and manual transmission overhaul for one week, followed by a week of automatic transmission overhaul. During the final week, in which Mr Johnson taught automatic transmission overhaul, he re-aggravated his back whilst passing a clutch pack (about 1-1.5kg) to a student (the clutch pack incident).[15]
[15]T150.

The TAFE argued that there was nothing particularly weighty or strenuous about Mr Johnson’s work at the time of the four incidents, or more generally. It said that there were serious issues surrounding Mr Johnson’s account of each of these events. The teaching work in the classroom was light, and only on limited occasions did Mr Johnson have to carry out work that could be described as moderate or heavy when doing practical demonstrations. The TAFE contended that it was open to Mr Johnson to seek assistance either from other teachers or from students in the room in the unusual event that he was required to carry out a moderate to heavy lift. This, it said, had been specifically spelt out by Mr Williams once Mr Johnson was placed on light duties. If the TAFE was liable in negligence or for breach of statutory duty, it contended that there was a significant degree of contributory negligence on the part of Mr Johnson in his failure to seek assistance.

The psychiatric injury claim

Mr Johnson’s pleaded psychiatric injury claim alleges injury in the course of his employment, but ‘particularly’ from 2003 when he had returned to work on restricted duties and was ‘required to undertake a heavy teaching workload’. According to the statement of claim, during this time Mr Johnson was ‘subjected to bullying and harassing behaviour on an ongoing basis by his manager’.[16]
[16]Plaintiff’s Statement of Claim filed 7 August 2013, [7].

At trial, this claim centred on Mr Johnson’s relationship with Mr Williams after April 2003, when Mr Johnson returned to work following the manual transmission incident. From this time until Mr Johnson broke down and left the TAFE in March 2006, Mr Johnson alleged a number of discrete events or incidents which (with one exception)[17] constituted bullying and harassment.
[17]The WorkCover meeting incident (discussed below).

The first two occurred shortly after Mr Johnson returned to work when he was on light duties. Mr Williams approached Mr Johnson listing three things that he required from his teachers, and Mr Johnson took the comment as a criticism (the three things incident). Mr Johnson also alleged that Mr Williams was critical of Mr Johnson’s decision not to attend a TAFE trip to Warrnambool because of his back injury (the Warrnambool trip incident).

The third and fourth incidents took place in the first half of 2004. Mr Johnson alleged that he was still on restricted duties during this period. He claimed that Mr Williams told him that his colleagues were sick of hearing him complain about his back (the sick of complaining incident) and Mr Williams returned him to duties involving moderate to heavy work, refusing to talk to Mr Johnson about the change (the change in timetabling incident).

The fifth event was a WorkCover meeting with Mr Johnson in December 2004 (the WorkCover meeting). Although Mr Johnson did not rely on the meeting as evidence of being bullied by Mr Williams, he did say that it was an event at the TAFE which caused him psychological upset.

The sixth event alleged by Mr Johnson to constitute bullying by Mr Williams relates to the way Mr Williams dealt with Mr Johnson when he failed to attend work one morning in February 2005 (the failure to attend incident). Mr Johnson alleged that Mr Williams was unfair and aggressive.

The next incident transpired in the week of Good Friday 2005. Before taking leave, the two men had a chat about Mr Johnson’s work tasks. The conversation turned sour and Mr Johnson swore at Mr Williams (the Good Friday incident). Around the same time, Mr Johnson said Mr Williams also snapped at him when he asked a question at an in-house training seminar (the in-house training incident).

The ninth and tenth incidents relied on by Mr Johnson to support his psychiatric injury claim did not, in the first instance, directly involve Mr Williams. Each concerned Mr Johnson’s interactions with students at the TAFE; in November 2005, when a student accessed Mr Johnson’s computer in order to cheat on a test (the student cheating incident) and in February 2006, when the same student refused to comply with a request by Mr Johnson, telling Mr Johnson that ‘things happen to people who threaten me’ (the things happen incident). Both incidents were said to have caused Mr Johnson great distress. In fact, Mr Johnson was so affected by the things happen incident that he was sent home by a representative from Human Resources, Ms Olga Hunt, and was off work for three weeks.

The final incident occurred in March 2006 in the week he had returned to work after being off due to the things happen incident. He attended an in-service meeting where Mr Williams singled him out in front of his colleagues and told him he was not performing (the March in-service meeting incident).

Mr Johnson also said that throughout the period from 2003 to 2006, he was subjected to ongoing jibes by Mr Williams directed towards his health or work performance.

As I followed the argument of his counsel, the TAFE was said to be liable to Mr Johnson in two ways:

(a) vicariously, as a result of Mr Williams’ behaviour from 2003 to 2006, which was said to amount to bullying and harassment; and/or

(b) systemically, for failing to intervene in the conflict between the two men, which resulted in Mr Johnson then leaving work permanently in March 2006.

The manner in which the case was put by Mr Johnson’s counsel altered during the course of the trial. Whilst the statement of claim alleged solely ‘bullying and harassing behaviour’, when final submissions were filed, it extended to ‘bullying, harassment and conflict’ with Mr Williams. The addendum is revealing and, I think, clarifies what the case was truly about.

The TAFE contended that there was nothing extraordinary or unusual about the working relationship between the two men. There was no bullying or harassment by Mr Williams. Mr Williams’ activities were directed to trying to extract the best from his team. There was no suggestion that Mr Williams had ever used inappropriate language. Indeed, the only occasion upon which inappropriate language was used between the two men was by Mr Johnson to Mr Williams, which resulted in Mr Williams reporting Mr Johnson to senior management.

In essence, the TAFE’s case was that there were likely to be problems in any working relationship, but that the level of tension between Mr Williams and Mr Johnson was of insufficient magnitude to give rise to an unreasonable lack of care on the part of Mr Williams towards Mr Johnson.

Finally, I should mention an alternative claim for breach of contract made in Mr Johnson’s statement of claim. In effect, this claim was simply a replication of the claim in negligence and was inadequately pleaded. No reliance was placed on it at trial.

The trial
Mr Johnson’s case

In addition to Mr Johnson’s viva voce evidence, the following witnesses gave evidence on his behalf:

· Mr Lanny Pincott, a fellow teacher and former friend of Mr Johnson;

· Mr Gordon Streader, another fellow teacher;

· Dr Bill Verhoef, Mr Johnson’s treating general practitioner;[18] and

· Dr Tony Pastore, Mr Johnson’s treating clinical psychologist from 2008.[19]

[18]Dr Verhoef’s clinical notes (Exhibit P10) and medical reports dated 2 December 2008, 7 April 2009, 7 December 2011, 24 March 2012, 12 April 2012, 26 January 2013 and 13 August 2014 (Exhibit P9) were also tendered.

[19]A portion of his clinical notes taken in or around July 2008 (Exhibit D5) and medical reports dated 14 July 2008, 21 February 2009, 26 February 2011, 1 October 2011 and 23 August 2014 (Exhibit P13) were tendered.

In addition to reports of Dr Verhoef and Dr Pastore, a large number of medical reports prepared by treating practitioners, occupational physicians and surgeons, and medico-legal specialists were tendered. These were the reports of:

· Dr David Fish;[20]
[20]Reports dated 6 October 2003 and 22 October 2003 (Exhibit P17).

· Mr Paul Randles;[21]
[21]Questionnaire dated 6 February 2004 (Exhibit P18).

· Ms Judith McKenzie;[22]
[22]Reports dated 12 October 2004 and 26 November 2004 (Exhibit P23).

· Mr Warwick Hooper;[23]
[23]Questionnaire dated 22 February 2004 (Exhibit P19).

· Mr Damien Tange;[24]
[24]Reports dated 11 February 2012, 5 April 2012, 2 August 2012 and 13 May 2014 (Exhibit P15).

· Mr Kenneth Brearley;[25] and

· Dr John King.[26]

The TAFE’s case

[25]Reports dated 30 March 2011, 15 March 2012, 12 April 2012, 7 December 2012, 17 January 2013 and 1 August 2014 (Exhibit P14).

[26]Reports dated 11 February 2010, 3 March 2011 and 31 March 2011 (Exhibit P16).

The TAFE called viva voce evidence from the following witnesses:

· Mr Rodney Williams;

· Mr Wayne Shevlin, the Human Resources Manager at the TAFE;

· Ms Olga Hunt, the Workplace Support Manager of the TAFE;

· Mr Craig Brittle, a sessional teacher and acting manager of the Automotive Department of the TAFE.

A number of medical reports prepared by medico-legal specialists were also tendered by the TAFE. These were reports of:

· Dr Clive Jones;[27]
[27]Report dated 26 June 2003 (Exhibit D12).

· Dr Clive Kenna;[28]
[28]Report dated 22 November 2007 (Exhibit D13).

· Mr Brendan Dooley;[29]
[29]Report dated 12 August 2008 (Exhibit D14).

· Mr Michael Dooley;[30]
[30]Reports dated 25 October 2011 (Exhibit D15) and 15 March 2012 (Exhibit D16).

· Mr Roy Carey;[31]

· Dr Nigel Strauss;[32] and

· Dr Simon Kennedy.[33]

[31]Reports dated 14 August 2012 (Exhibit D17) and 17 July 2014 (Exhibit D18).

[32]Reports dated 12 December 2012 (Exhibit D19), 19 December 2012 (Exhibit D20) and 19 August 2014 (Exhibit D21).

[33]Report dated 24 March 2010 (Exhibit D22).

The credibility of the witnesses as to liability
Mr Johnson

To a large extent, Mr Johnson’s case turned upon acceptance of Mr Johnson’s account of his work activities and his interactions with Mr Williams. For reasons I will now explain, Mr Johnson presented as a very poor historian and ultimately it was impossible to give any real credence to his account of events at the TAFE. There were major failings in Mr Johnson’s accuracy in recounting relevant events.

First, I have no doubt that Mr Johnson, both in his everyday life and in the preparation for trial has, focused intensely on the issues that are the subject of this claim, and in particular his working relationship with Mr Williams. In the words of his treating doctor, Dr Verhoef, he tends to ‘ruminate’ on issues.[34] In my opinion, Mr Johnson magnified not only what occurred but also the consequences of that event to his wellbeing.
[34]T376.

Indeed, it was clear that after his return to work on light duties in mid-2003, Mr Johnson was preoccupied with his rights under WorkCover and determined to blame management for any recurrence of his injury.[35]
[35]T129-132.

This preoccupation has been noted by two of the consultant psychiatrists. In his report of March 2010, Dr Simon Kennedy said that ‘[Mr Johnson] is focused on WorkCover issues and has a negative perception of the workplace.’[36] In December 2012, Dr Nigel Strauss stated that ‘this man remains preoccupied with what happened to him at Box Hill TAFE’.[37] In his report of 2014, Dr Strauss said:

Today this man emphasised at the beginning of the assessment that he is very worried about his upcoming compensation claim. He said he spends a good deal of time researching and writing notes.
…
He spends his time preparing for his court case. He said his memory is good but his concentration fluctuates depending upon his level of pain.[38]

[36]Report of Dr Simon G Kennedy dated 24 March 2010 (Exhibit D22).

[37]Report of Dr Nigel Strauss dated 12 December 2012 (Exhibit D19).

[38]Report of Dr Nigel Strauss dated 19 August 2014 (Exhibit D21).

Second was his apparent exaggeration of particular events which I conclude was intended to bolster his case. An example is his allegation that he suffered excruciating back pain when moving the manual transmission in late March 2003 (immediately following the manual transmission incident). He described the actual event and the onset of pain in considerable detail during the trial.[39] He said that as a result of this incident he experienced ‘instant agonising pain in [his] lower back and legs’,[40] which persisted for a considerable period of time.[41] No evidence was called from the Lilydale Super Clinic which he attended immediately after this event.
[39]T113-116.
[40]T116.
[41]T120.

Given the nature of that event (as he described it) and its sequelae, it could be expected that the symptoms (if not the precipitating event) would have been reported to his treating doctor at the first available opportunity. In fact, on 10 April 2003 when Dr Verhoef first saw Mr Johnson after the incident, he took no history whatsoever relating to a sudden onset of extreme and continuous pain arising out of a work activity.

Another example is Mr Johnson’s evidence as to his duties upon his return to the TAFE on light duties in mid-2003. He stated that he had become ‘tense, frightened,’ and was required to stand on concrete floors for eight hours at a time[42] — a notion which was swiftly dismissed at trial.[43] The proposition was arrant nonsense. He worked four days a week on site at the TAFE. He had only one teaching day per week of eight hours, of which a sizeable portion was devoted to classroom teaching with a number of breaks.[44]
[42]T131.
[43]T239.
[44]T329-333.

Third was Mr Johnson’s tendency to diminish matters that might affect the acceptance of his account of his interaction with Mr Williams and the asserted devastating effects of that relationship. In the course of his evidence-in-chief, Mr Johnson passingly referred to an episode of stress in 1997 and 1998 associated with his employment at the TAFE.[45] He did so on the basis that these were transient episodes involving minor disagreements with a supervisor, which resolved quickly. He said that it was ‘insignificant’ compared to the ‘enjoyment that [he] got from working with the students.’[46]
[45]T84-85.
[46]T86.

However, when Mr Brittle (a fellow teacher) was called by the TAFE, he produced a questionnaire completed by Mr Johnson in 2002 which painted a completely different and toxic picture of his relationship with his supervisors in the past.[47] The questionnaire disclosed that Mr Johnson had previously alleged that two of his managers at the TAFE (separately and at different times) had bullied and harassed him.[48] One, a Mr Herron, was the subject of a formal complaint.[49]
[47]See [239]-[241] below.
[48]T735-736.
[49]T736.

The questionnaire (which Mr Brittle arranged for Mr Johnson to complete for the purpose of Mr Brittle’s Master’s thesis) required Mr Johnson to describe his ongoing confrontation with his supervisor. At that time, Mr Johnson considered that he had been singled out by the supervisor and accused of not carrying out his role within the team.[50] He felt that his work practices were criticised and that his superior had a regimented and authoritarian style in communication. Mr Johnson wrote that he felt that he was bullied because he:

Never got on with this individual even at teachers college, because of his attitude, manner superiority complex to others, SNOB![51]

[50]Excerpts of ‘Management and Change’ Master’s thesis written by Mr Brittle (Exhibit D11).

[51]Excerpts of ‘Management and Change’ Master’s thesis written by Mr Brittle (Exhibit D11).

The questionnaire records a number of Mr Johnson’s statements concerning this alleged bullying episode. Mr Johnson denied making several of the admissions contained in Mr Brittle’s questionnaire (or, alternatively, said that he had incorrectly responded in the present tense), but accepted that he had completed the questionnaire and answered questions posed by Mr Brittle.[52] There is no reason to disbelieve Mr Brittle’s account of the answers given by Mr Johnson.
[52]T733, T783.

Fourth, Mr Johnson’s presentation in court was that of a mild-mannered and meek man constantly overawed by his superiors. However, his out of court behaviour demonstrates that he was perfectly capable of looking after his own interests. For instance, on 7 December 2004, he sent the following email to Mr Shevlin, the Human Resources Manager:

Wayne,
I am extremely troubled over this confusing meeting conducted 6/12/04 in the HR conference room bld 3. and the implication arising from it. Our phone discussion led me to believe that the meeting was only a follow up on my progress to date, not to be told bluntly, that I’m permanently incapacitated.
Apparently I’m being offered a new “JOB OFFER”??? WITH SEVERE WORK RESTRICTIONS and advised to follow to the letter these restrictions, the work program to be written by an individual who didn’t seem to understand the TAFE award/conditions or my current workplace restrictions, with input from Rob Williams and as an after thought me, by the way who is the “Gabby” person and what is her role in this, who does she represent, she only introduced herself then run the meeting.
I am extremely unhappy that you or a HR representative, FAILED TO ATTEND THIS MEETING!
I request a meeting with you ASP. to discuss these concerns. [sic][53]

[53]Email from Mr Johnson to Mr Shevlin dated 7 December 2004 (Exhibit D3).

Mr Johnson’s presentation in court was also inconsistent with his behaviour on 22 March 2005, when Mr Johnson verbally attacked Mr Williams, resulting in Mr Williams reporting Mr Johnson to their superior.[54] Even more surprisingly, this is one of the incidents which Mr Johnson says constituted bullying on the part of Mr Williams.
[54]As described in an email from Mr Williams to Mr Johnson and others dated 23 March 2005 (Exhibit D8).

Subsequently, when Mr Johnson was being pressed by the TAFE for a response to allegations that he was threatening in his behaviour towards Mr Williams on 22 March 2005, he could not find the time to attend an arranged meeting.[55]
[55]Emails from Ms Olga Hunt to Mr Johnson dated 15 and 23 September 2005 (Exhibit D7).

Ms Olga Hunt, the Workplace Support Manager at the TAFE, had a number of dealings with Mr Johnson in relation to Mr Johnson’s work-related issues and remembered him, when upset, as ‘bordering on aggression’.[56]
[56]T635-636.

Finally, Mr Johnson’s description of constant bullying and harassment does not ring true with his behaviour at the time. Whilst I accept that during 2005 he mentioned bullying at work to his general practitioner, it is singular that Mr Johnson made no formal complaint about Mr Williams’ behaviour to the TAFE when he was perfectly capable of voicing his opinion when he felt aggrieved (as he had done in the past).[57]

Other witnesses
Lanny Pincott

[57]T736.

I put the evidence of Mr Pincott as to the alleged bullying and harassment by Mr Williams of Mr Johnson to one side. As a former friend of Mr Johnson and a disgruntled (former) employee of the TAFE, the evidence disclosed that Mr Pincott has a massive grudge against Mr Williams, and was patently biased in his evidence, notwithstanding his protestations to the contrary.[58]

Gordon Streader

[58]T426-T427. See discussion at [226]-[227] below.

I thought Mr Streader endeavoured to give frank evidence, with one significant caveat: his recollection as to the interaction between Mr Williams and Mr Johnson seemed to improve in the course of giving his evidence. Two of the critical incidents relied upon by Mr Johnson, and referred to by Mr Streader in oral evidence, were not mentioned in his original affidavit filed in October 2011 in support of Mr Johnson’s serious injury application (in that affidavit, Mr Streader could ‘specifically recall’ only one example of ‘bullying behaviour’ at the TAFE, notwithstanding he had read two of Mr Johnson’s affidavits). Indeed, one recollection of a specific incident came to light during Mr Streader’s re-examination.[59]
[59]T507-508.

Overall, I have no confidence in his recent revelations of specific events relating to the alleged bullying and harassment of Mr Johnson nearly ten years ago, but I accept his account of a meeting which probably occurred in March 2006 (and is mentioned in the affidavit), as well as his description of work activities carried out in the Automotive Department.

Rod Williams

Mr Williams, I think, generally endeavoured to give an honest account of his dealings with Mr Johnson. Certainly, I preferred his evidence to that of Mr Johnson. There is contemporaneous documentation that supports a number of aspects of Mr Williams’ evidence (particularly after the heated discussion with Mr Johnson in March 2005). However, he had a surprisingly poor recollection of the events surrounding Mr Johnson’s return to light work duties and his ultimate cessation of work. In particular, Mr Williams’ lack of recollection of events involving Mr Johnson in February and March 2006 was puzzling, to the point where I prefer the evidence of Mr Johnson, corroborated by Mr Streader, as to the March in-service meeting in 2006.[60]

Craig Brittle

[60]See[361]-[370] below.

Mr Brittle was the most impressive of the fellow TAFE teachers called at the trial. As far as I could tell, he had no axe to grind and had worked closely with Mr Johnson. Ultimately, and for reasons I shall explain in due course, I am satisfied that his account of the relationship between Mr Johnson and Mr Williams fits more comfortably with the contemporaneous material and my view of Mr Johnson’s evidence. I accept his account of events at the TAFE.

Wayne Shevlin and Olga Hunt

Both Mr Shevlin and Ms Hunt were members of the Human Resources Department of the TAFE. Mr Shevlin was the Manager of the Human Resources Department throughout the duration of Mr Johnson’s employment. He had little to do with Mr Johnson and his evidence was passingly relevant. However, the evidence of Ms Hunt (who was the Workplace Support Manager from mid-2005) was particularly relevant to the events surrounding Mr Johnson’s last year at the TAFE. Both were credible witnesses, and I accept their evidence unreservedly.

The management structure at the Box Hill campus

Mr Johnson worked in the Automotive Department along with approximately 12 other teachers. In about 2001, Mr Williams, then a teacher in the Automotive Department, was promoted to the role of Program Coordinator. From that time, he effectively supervised all teachers in the Automotive Department (including Mr Johnson) and was responsible for timetabling.[61] He remained in that role throughout Mr Johnson’s employment at the TAFE. Mr Williams in turn reported to Mr Kevin McCollum, the Centre Manager in charge of the Automotive and Engineering Department.[62]
[61]T124.
[62]T615-616; T151.

The Human Resources Department played an important role in the management of Mr Johnson’s work injuries, his compensation claim and his return to work program. It was managed by Mr Shevlin until August 2009 and he was assisted by Ms Hunt. Ms Hunt was employed as a Workplace Support Manager to assist in employee disputes, WorkCover claims and general employee relations advice. She had considerable involvement with Mr Johnson after he commenced light duties in March 2003.

Mr Johnson’s employment duties

Although it could be assumed that Mr Johnson’s employment was the subject of a written contract, no such document was produced at the trial. Neither Mr Johnson nor the TAFE referred to any piece of legislation or subordinate instrument which might have affected the terms and conditions under which Mr Johnson was employed.

Broadly, in his employment as an automotive trades teacher, Mr Johnson’s duties involved the training of apprentice motor mechanics. He taught a variety of motor mechanical practices, specialising in engines, automatic transmissions, and manual transmissions.

Between 2000 and 2006, Mr Johnson worked a nominal 38 hour week. However, the arrangement reached between the teachers and the TAFE was that teachers would work 20 teaching hours, with a further 10 hours devoted to other administrative teaching tasks (to be undertaken at the TAFE). It was up to Mr Johnson (with his supervisor’s approval) to decide whether the remaining eight hours would be spent at work or at home.[63]
[63]T84.

The 20 hour week was comprised of one eight hour block (normally the last day of the week — depending upon the unit, a Thursday or a Friday) and three four hour blocks. In effect, this enabled Mr Johnson to work a four day week at the Box Hill campus.

The 20 contact hours were broken up into theory and practical teaching. The theory component involved classroom work with little or no manual handling. Mr Johnson’s estimate was that, prior to his back injury, this took between 30 and 50 per cent of his time on campus.[64] The balance was spent in the workshop, training students as to the operations of various motor vehicle components. This took place in a large workshop area which was divided into sections which dealt with particular units — for instance, an engine area, a transmission area, and so on.
[64]T362.

I shall describe the work carried out by Mr Johnson in a little more detail shortly, but it suffices to say that on occasion, the various engine parts had to be moved into position before a class could commence. Once the various engine parts were located on stands or benches, there was a degree of manual handling involved in assembling and disassembling or manoeuvring a particular component. For example, parts of an engine (of varying weights) might need to be removed in the course of a lesson.

During the relevant period, for both the theoretical and practical components, the class size was about 16-18 students.[65]
[65]T328.

Mr Johnson’s manual handling tasks

In October 2003, after Mr Johnson suffered a back injury, Dr David Fish, an occupational physician, visited Mr Johnson’s workplace and identified the tasks he performed in his normal duties as follows:

The worker [Mr Johnson] performs demonstrations to apprentices of mechanical overhauls of engines and other motor vehicle parts. The work is varied in accordance with the work of a motor mechanic and includes:
1.Hoist underbody work.
2.Transmission demonstration.
3.Engine demonstration.
4.Battery charging and recharging.
5.Final drive assembly demonstration.
6.Cylinder head regrinds.
7.Wheel change.

I will not comment on each activity in turn, but highlight the problem areas.
1.The underbody work via a hoist requires prominent extension of the neck and is likely to aggravate [t]he worker’s cervical spondylosis.
2.Transmission work requires demonstration on a steel top bench with transmissions requiring forceful use of hand tools to remove various components. As the transmissions are unstable on the bench, they must be restrained by either students or the worker while the part is removed.
3.Engines are located on a rotating jig which is lockable and stable.

Most tasks are lightweight in nature and can be carried out by merely demonstration or pointing out the necessary tasks to the apprentices by the worker. It is noted that there are many parts and components stored under benches which when these must be taken out for demonstration purposes requires low bending and heavy lifting. While no immediate solution to this problem is identifiable, it is recommended that an alternative system of storing the necessary demonstration and practice parts for the apprentices be found. In the interim, the worker should be instructed not to lift components from under benches as this is likely to aggravate his back pain.
The major components of the workshop work that he has difficulty with are in order:
1.Transmission.
2.Engines.

It is recommended that he not be returned to transmission work as this will require frequent stabilisation of parts on the bench. Otherwise he is fit to return to a full teaching load in both theory and workshop demonstrations.[66]

[66]Report of Dr David Fish dated 22 October (Exhibit P17).

The practical component of the motor mechanics course was conducted in a large factory-type area, approximately 100m by 35m.[67] The various modules were taught in dedicated parts of the area. Teaching rooms adjoined the work area, and most of the practical work took place using a long work bench on which to demonstrate the particular mechanical part to the students. The surface of each bench top was usually galvanised sheet or stainless steel, which meant that transmissions or other parts could slide quite easily across the bench (particularly when the parts were oily), requiring careful shifting and moving so the parts would not fall off the bench entirely.[68]
[67]T445.
[68]T443.

Mr Streader, whose evidence I accept on this aspect of the case, stated that between 2000 and 2004 there was a reasonable amount of manual handling required of a teacher prior to a class in setting up the workshop area for practical teaching. Teachers were required to lay out each component to be used in the class, including, for example, retrieving cylinder heads (weighing approximately 20kg) from underneath each work bench and placing them on the bench, or putting manual transmissions (weighing approximately 20kg) or automatic transmissions (between 40-50kg) in place on each student’s bench.[69] The transmissions were distributed throughout the workshop; some were beneath the work benches, some were on high racks and some were on low racks along the walls.[70]
[69]T439-441.
[70]T442.

Both Mr Streader and Mr Johnson’s evidence was that it was considered a teacher’s job to prepare the classroom for a lesson, and that there were no lifting devices at the time which could be used to move equipment. Mr Streader said that:

Sometimes we would ask other teachers if they were available to team lift. Sometimes you just had to do it yourself.[71]

[71]T442.

Later, in cross-examination, Mr Streader accepted that there was almost always another teacher present in the workshop who could be asked to assist in setting up. However, the ability of the teacher to assist would depend on the set-up requirements of their own class and whether the teachers arrived at the same or a similar time.[72]
[72]T466-467.

Mr Streader said that in 2006 (after Mr Johnson had left the TAFE), a ‘trolley’ type lifting device called a ‘Platform Lift’ was provided to the workshop, virtually eliminating any heavy lifting.[73] Around the same time, ‘saddle brackets’ were fitted to the work benches to lock in equipment and prevent anything falling off.[74]
[73]T447.
[74]T447-448.

Once a class was underway, Mr Streader said the manual handling involved was generally moderate, although heavy handling was occasionally required when demonstrating how to dismantle particularly weighty parts of engines or transmissions.[75]
[75]T444-446.

How did Mr Johnson injure his back and neck?

Up until April 2002, Mr Johnson worked in the practical area of the Automotive Department without grievance or injury. There is no record of any complaint to his medical practitioner or the TAFE about back or neck pain occurring at work prior to this date. I repeat what is self-evident from the evidence — this teaching job was not one that involved constant heavy, manual handling. On the contrary, the 20 contact hours with students involved a small amount of moderate to heavy manual handling — primarily when setting up a work bench for a class and occasionally during a class.

For reasons which I have already mentioned, I have no confidence in Mr Johnson’s viva voce account as to the occurrence of his injuries. It is necessary, therefore, to look to the whole of the evidence, including his contemporaneous accounts to medical practitioners, work accident reports, reports obtained from fellow employees and medical practitioners, and other available work/medical records.[76]
[76]See generally Davies v Nilsen [2014] VSCA 278 (7 November 2014), [8], [83]-[95].

I shall set out now my reasons and findings as to the allegations concerning the back and neck injuries.

The engine stand incident: April 2002

Mr Johnson claims that he injured his back on or about 10 April 2002 when trying to move an engine on a stand,[77] which needed to be locked up overnight. Due to the weight of the engine and allegedly defective rollers, the engine stand would not budge. He used considerable force in trying to move the stand (which he estimated weighed at least a couple of hundred kilograms)[78] and stated that he injured his spine through his numerous attempts to push it. He was only able to move the stand half a metre.[79]
[77]See Mr Johnson’s diagram of the engine stand (Exhibit P5).
[78]T97.
[79]T99.

Mr Johnson described the stand as ‘over-engineered’, stating that this type of stand could have ‘held the Queen Mary up on them.’[80] The caster wheels affixed to the stand did not turn, and the metal fixed wheels did not rotate properly.[81] He was adamant that at the time of moving the stand there were no other students or teachers around to ask to assist him.[82]
[80]T94.
[81]T94; see also Mr Johnson’s diagram of the engine stand (Exhibit P5).
[82]T198-199. There was some conjecture as to whether the incident occurred at 4.30pm on a Wednesday (when other teachers may be present), or a Friday, when, as Mr Johnson said [at T99] you could ‘fire a cannon through the place and be lucky to hit anything’. Regardless of the day on which the incident occurred, Mr Johnson insisted there was nobody around the workshop area to assist him, although he could have, in the extreme, gone to the head office to ask somebody there for help.

Following the incident, on 22 April 2002, Mr Johnson signed and submitted an incident report and investigation form which had been completed by Mr Glenn Read (a teacher and OH&S representative employed by the TAFE).[83] In general terms, the description of the event contained in the incident report (which identifies the date of the accident as 10 April 2002) is consistent with the viva voce account provided by Mr Johnson. It also tallies with the account that he gave Dr Verhoef in May 2003 (‘jarred back at work last year and has had back pain ever since’)[84] and Dr Fish in October 2003 (‘pushing an engine machine with resultant back pain’).[85]
[83]Incident Report dated 12 April 2002 (Exhibit P2), T101-102.
[84]T358.
[85]Reports of Dr David Fish dated 6 and 22 October (Exhibit P17).

Mr Johnson did not recall having any time off work, and did not seek any medical treatment for his back.[86] He accepted in cross-examination that in light of the measure of pain or discomfort the injury caused him, he did not consider the injury sufficiently important to mention it to his doctor.[87] Having said that, it is clear that this was the precursor to his ongoing problems in 2003 and thereafter.
[86]T103; T194-195: in cross-examination Mr Johnson accepted that he did attend Dr Verhoef’s rooms on 27 May 2012 (about six weeks after the incident in which he injured his back), but he did not make any mention of the injury.
[87]T195-196.

Throughout the rest of 2002, Mr Johnson performed his normal work duties and did not seek medical treatment, despite experiencing increasing stiffness in his back.

I am satisfied that Mr Johnson sustained an injury to his back in April 2002, late in the working day, by endeavouring to move an engine stand, which caused a muscular strain to his back. I accept Mr Johnson’s account, which tallies with the contemporaneous incident report. The evidence of the doctors who examined Mr Johnson on behalf of the TAFE a year later (Dr Fish[88] and Ms McKenzie[89]) satisfies me that this was the initial cause of his ongoing back problems, which were essentially muscular-ligamentous, superimposed upon an asymptomatic degenerative lumbar spine.

The crank shaft incident: early March 2003

[88]Reports of Dr David Fish dated 6 and 22 October 2003 (Exhibit P17).

[89]Report of Ms McKenzie dated 12 October 2003 (Exhibit P23).

In the week after 10 March 2003, whilst demonstrating a procedure for checking crank shafts (approximately 20-30kg in weight),[90] Mr Johnson asserts that he further strained his back.[91] As far as I could understand, his account went as follows: at the time he was holding the crank shaft reasonably far out in front of him and lowering it in front of students, when he felt his back strain.[92] He stated that there were no slings or metal frames available to use as a lifting aid in performing the manoeuvre,[93] although he could have used a piece of rope which was relatively close by,[94] and he accepted that there were 10-15 people in the vicinity he could have asked for help in lifting.[95]
[90]T91 (per Mr Johnson); T409 (per Mr Pincott).
[91]T104-105.
[92]T105.
[93]T105-106.
[94]T106, T205.
[95]T204-205.

Mr Johnson described his back after this incident as ‘quite sore,’ but he was still able to perform his teaching duties and did not seek any medical assistance, in particular he did not see Dr Verhoef.[96]
[96]T106.

In cross-examination, the circumstances surrounding the incident became murky. Mr Johnson could not recall whether he filed an incident report after this event, and none was tendered into evidence.[97] Nor were any certificates of capacity issued by Dr Verhoef in respect of the alleged incident. Mr Johnson could not recall whether the episode was reported to the TAFE, and was generally vague about what precisely he was doing at the time and the impact it had on his back condition.
[97]T204.

There is no contemporaneous medical evidence from Dr Verhoef that this event played any part in the development or aggravation of symptoms.

In addition, during 2003, Mr Johnson saw three medico-legal consultants on behalf of the TAFE.[98] He did not tell any of them of this incident. Indeed, to Ms McKenzie, he simply reiterated that his back had been sore in March 2003 prior to the manual transmission incident (discussed below), but did not attribute this to any particular incident prior to that event. So, in summary, there is no contemporaneous or near contemporaneous corroboration of this alleged aggravation of his back pain.
[98]Drs Jones, McKenzie and Fish.

I am satisfied that in early March 2003, Mr Johnson’s back condition may have been aggravated by returning to a five-day week, consistent with his account to Ms McKenzie. However, there is no independent evidence of either the alleged crank shaft incident occurring or its effects upon him. Given my doubts about Mr Johnson’s capacity to give accurate evidence, I am not prepared to accept that any injury occurred in the circumstances described by him. On his own admission, this incident did not incapacitate him from work, and he continued his usual duties and did not seek medical assistance.

The manual transmission incident: late March 2003

On 25 March 2003, Mr Johnson sustained another injury to his back. On his account, he was assisting a student in dismantling a manual transmission[99] (which was not held down by any sort of mechanical clamping device), requiring Mr Johnson to restrain it by use of his body weight, when the transmission suddenly started to slip off the bench. Instinctively, Mr Johnson moved to catch the transmission and caught it whilst it was sliding sideways, twisting his back. He experienced instant agonising pain in his lower back and legs,[100] which continued for months.[101]
[99]Also known as a ‘gearbox’.
[100]T116.
[101]T120-121.

According to Mr Johnson, while clamping devices were available at the Box Hill campus, they were in short supply, being spread across the whole facility. Instead, students would assist each other in holding the transmission while another student worked on it: no clamping devices were used.[102] Vices were much more readily available at the Mitcham campus, as were dedicated work benches which held transmissions in place via a frame.
[102]T115.

Mr Johnson reported the occurrence and filed an incident report on the same day with the TAFE.[103] He then left work to seek treatment at the Lilydale Super Clinic (his usual general practitioner, Dr Verhoef, was not available).[104] On 10 April 2003, he saw Dr Verhoef, and I shall detail his observations and recorded notes in a moment.
[103]Incident report dated 25 March 2003 (Exhibit P3).
[104]T119.

Counsel for the TAFE attacked the veracity of Mr Johnson’s account of this incident, and urged me to reject it on the basis of its multiple inconsistencies with other in- and out-of-court statements. It is true that there are major inconsistencies in Mr Johnson’s viva voce evidence as to the exact cause of his injury and the immediate sequelae. This account needs to be examined in the light of the contemporaneous evidence.

First in time is the incident report. As with the engine stand incident report, the part completed by Mr Johnson is confined to the first page,[105] which reads as follows:
[105]T118.

What were you doing at the time of the incident?
Working with students disassembling manual transmission.
What was the sequence of events leading to the incident?
Sore and stiff back at the start of the day.
10am reported back pain to program coordinator of pain [sic].
11am stopped work. Left around 11.30am for medical treatment.[106]

[106]Incident report dated 25 March 2003 (Exhibit P3).

Mr Johnson offered no explanation as to why the sliding transmission was not mentioned in the incident report, other than that the form was apparently filled out by Mr Read, rather than by himself.[107] This excuse is unconvincing, as the first page, Mr Johnson accepted, was in his own writing.
[107]T207.

However, the report (from pages 2-4) also contains the following remarks of Mr Read (apparently completed on 13 May 2003), who noted:

Manual handling of heavy components and units, whilst training students in Automotive Studies.[108]

[108]Incident report dated 25 March 2003 (Exhibit P3).

The report goes on to describe the ‘hazardous condition’ that caused the incident as ‘a poor work station set up’ and ‘poor position imposed by inadequate work unit handling equipment’. The source of the injury is identified as ’manual handling’, and Mr Read recommends remedial action, including the modification of benches and installation of a vice (consistent with the need to secure a part whilst it is being demonstrated to students).

In July 2003, Ellen Alex, an OH&S officer at the TAFE, emailed Mr Read as to whether anything had been done to modify the bench by way of the instalment of a transmission vice. Mr Read replied that he assumed this was a reference to Mr Johnson’s accident, and that nothing had been done.[109]
[109]Emails between Mr Read and Ms Alex dated 18 July 2003 (Exhibit P24).

There is, however, no specific reference to the manual transmission incident in a ‘Back Condition History’ document prepared about 3-4 weeks after the injury and attached to Mr Johnson’s WorkCover claim of 14 May 2007.[110] In that document, which was prepared and typed by Mr Johnson, he describes the cause of his condition as a ‘sore, stiff back’ at the start of the day, with an increase in back pain when ‘moving, turning, [or] holding the gearboxes while the students did their work’ in the manual gearbox repair class. Whilst there is a reference to the handling of a gearbox, there is no mention of the ‘agonising’ incident caused by attempting to catch the manual transmission sliding off the bench.[111]
[110]T256; Claim form dated 14 May 2003 and attachment titled ‘Back condition history’ (Exhibit D2).
[111]T257-T258.

When Mr Johnson attended Dr Verhoef’s rooms two weeks after the incident (and after two separate appointments at the Lilydale Super Clinic on 10 April 2003), he made no mention of the transmission incident nor the resulting agonising pain to Dr Verhoef. Dr Verhoef’s notes state only:

Back injury [for] six weeks. Query cause. Jobs at work aggravate it. Jarred back in pothole two weeks ago...[112]

[112]Clinical reports of Dr Verhoef (Exhibit P10); T380. Dr Verhoef agreed that had he been told that the transmission had slid off a work bench and that Mr Johnson had grabbed it and was in agonising pain, he would have written this information down (T382).

In his report concerning that consultation, Dr Verhoef noted there was ‘no specific one-off injury but a succession of strains to his back over a period of time’.[113] Dr Verhoef issued a general certificate stating that Mr Johnson was unfit for work for two days due to back pain.
[113]Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

When next seen by Dr Verhoef on 7 May 2003, Dr Verhoef took an expanded history in the following terms:

He said that he had strained his back at work last year whilst lifting an engine part. The original injury was reported at work the next day when the pain worsened overnight. He has had the pain ever since. He has seen a chiropractor and naturopath and has had x-rays taken of his neck and lower back.[114]

[114]Report of Dr Verhoef dated 2 December 2008 (Exhibit P9); Dr Verhoef issued ten WorkCover capacity certificates from 10 May 2003 until the end of that year. The certificates identified back pain, and by the end of the year, Mr Johnson was certified as fit for 20-hour duties.

Also in May 2003, Mr Clive Jones saw Mr Johnson on behalf of the TAFE’s workers’ compensation insurer. In his report dated 26 June 2003, he gave the following history in relation to Mr Johnson’s back injury:

On 25/3/03, he was taking a gearbox repair class, which involved teaching the disassembly and reassembly of gearboxes. A number of students required assistance, and he had to lift the gearboxes himself. Symptoms have been ongoing.[115]

[115]Report of Clive Jones dated 26 June 2003 (Exhibit D12).

In the report of Dr Fish (dated 6 October 2003, having seen Mr Johnson that day), the doctor states that ‘[i]n March 2003 [Mr Johnson] was working on engines demonstrating to students the assembly and disassembly of engines ... He said that he suffered a recurrence at that time…’[116]
[116]Report of Dr David Fish dated 6 October (Exhibit P17).

Subsequently, in a further report dated 22 October 2003,[117] Dr Fish noted that the transmission work required either the teacher or the students to restrain the piece of equipment as it was unstable on the bench.
[117]Report of Dr David Fish dated 22 October (Exhibit P17).

However, Mr Johnson’s answers to interrogatories served by the TAFE demonstrate continuing uncertainty about the incident. The questions and answers state as follows:

Interrogatory 8:
On what date did you:
(a)first experience symptoms of any of the injuries?
(b)first seek medical treatment for any and if so which of the first injuries?
(c)first take absence from work on account of any and if so which of the first injuries?

Answer
8.(a)-(c) I first experienced back pain in early 2002 however the condition resolved over a weekend of rest, and I did not consult my doctor. In approximately March 2003, I suffered neck and back strain but treated it with pain relief medication and did not go to the doctors. In April 2003 however, I suffered extreme low back and neck pain which [sic] for which I obtained treatment from my local GP at the Lilydale Clinic. I recall I was prescribed anti-inflammatory tablets, strong pain relief medication and rest. I believe I was off work for about two weeks.

…
Interrogatory 11:
(a)   On or about the 25^th March, 2003 did you hurt your low back when instructing a student to undo the shaft bold [sic] on a manual transmission?
(b)   If yes to part (a) hereof:
(i)     did you seek and/or receive any and if so what medical treatment in respect of that occurrence?
(ii)   were you absent from work for any and if so what period of time as a result of that occurrence?
(iii) were you restricted from performing your ordinary employment duties as a result of that occurrence for any and if so what period of time?

Answer:
11. (a) & (b) I refer to and repeat my answer to interrogatory 8(ii) above. On this occasion, I strained my back and neck whilst working on an engine, not a manual transmission.[118]

[118]Excerpt of Plaintiff’s answers to Defendant’s interrogatories (Exhibit D1).

Mr Johnson’s in-court account is, however, generally consistent with that given to Ms Judith McKenzie (orthopaedic surgeon) in October 2004 (with the exception of the date of injury). In the history taken by her from Mr Johnson, it is recorded that he suffered the injury ‘on 12 of that month as he was holding a transmission the student he was assisting jarred this causing him to develop neck pain, an increased level of low back pain and pain to the left calf.’[119]
[119]Report of Judith McKenzie dated 12 October 2004 (Exhibit P23).

Irrespective of the mechanics of the incident on 25 March, it is clear that Mr Johnson suffered a worsening of his back condition after that date. He was absent from work for several weeks and Dr Verhoef issued three certificates of capacity in respect of Mr Johnson’s condition in May and September.[120] These placed restrictions on his return to work (limiting Mr Johnson to ‘light duties’), and suggested various other recovery measures. In particular, the certificates stated that his back was aggravated by ‘pulling motors apart’ and by ‘sitting for long periods of time’.
[120]Certificates of capacity issued by Dr Verhoef dated 7 May 2003, 14 May 2003 and 9 September 2003 (Exhibit P4).

There were several attempts at a return to work by Mr Johnson in April 2003 and May 2003. After returning in May 2003, he says that he was given ‘no work’ at all for a period of time. He occupied himself by doing other teachers’ paperwork, marking tests, and completing data entry.[121] On 26 May 2003, he returned to work on higher duties, as per Dr Verhoef’s certificate.
[121]T124.

On 24 July 2003, a company known as Resolutions carried out a worksite assessment to assist in getting Mr Johnson back to work. It was intended that Mr Johnson would return to teaching for 16 hours in the classroom, without any practical or ‘heavy’ component. He described theory teaching as ‘uncomfortable’ (as he had to stand for long periods of time), though he managed to get by.[122]
[122]T126.

Resolutions also provided a counsellor, who saw Mr Johnson in July and August 2003. Mr Johnson’s work dates increased on a gradual basis throughout the year.[123]
[123]T330-331.

In a memorandum completed by Mr Williams in September 2004 it is noted that Mr Johnson returned to work on light duties in late May 2003 for 12 hours per week.[124] Dr Verhoef reported that by 21 July 2003 Mr Johnson had returned to work for 12 hours of teaching per week, and that he was not capable of doing more without aggravating his back.[125]
[124]Memorandum prepared by Mr Williams entitled ‘WorkCover History of Robert Johnson’ dated 21 September 2004 (Exhibit D9)
[125]Report of Dr Verhoef dated 21 July 2003 (Exhibit P9).

In August Mr Johnson’s hours were increased to 16 hours per week. Starting on 10 September 2003, Dr Verhoef recommended that Mr Johnson’s teaching duties be increased from 16 to 18 hours per week, although it appears that he remained on a 16 hour roster for most of that year.

Dr Fish made an OH&S inspection of the work site in October 2003 (which I mentioned earlier), and recommended Mr Johnson’s return to work for 20 hours per week with ‘no heavy lifting, no foreseeable use of hand tools, and engag[ing] the assistance of students and/or fellow colleagues with transmission and engine work’.[126] Dr Fish also commented that ‘most other tasks are lightweight in nature and can be carried out by merely demonstration or pointing out the necessary tasks to the apprentices by the worker.’
[126]Based on Mr Williams’ description of Mr Johnson’s return to work in his memorandum ‘WorkCover History of Robert Johnson’ dated 21 September 2004 (Exhibit D9).

Dr Verhoef’s notes record that by the end of the year Mr Johnson felt as if he could do full-time teaching duties but was still lingering on 16 hours per week. This situation continued into the New Year, and in February 2004 Dr Verhoef recorded that Mr Johnson’s back condition had allowed him to return to work over the holidays, although driving and bending tended to bring on his back pain again.[127]
[127]Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

This observation is consistent with Mr Williams’ ‘WorkCover History’ memorandum, which indicates that Mr Johnson had told him that he was coping well with his return to normal teaching duties over this period.[128]
[128]Memorandum prepared by Mr Williams entitled ‘WorkCover History of Robert Johnson’ dated 21 September 2004 (Exhibit D9).

So by early 2004, Mr Johnson had resumed teaching classes on a 20 hour (i.e. normal) basis, but with restrictions on heavy lifting.

By mid-2004, however, Mr Johnson says that Mr Williams changed the timetabling arrangements and assigned Mr Johnson to ‘heavy’ practical classes. Despite Mr Johnson’s protestations, he taught the classes as directed. However, he ‘made an extreme effort not to do very much manhandling at all’.[129] Mr Williams says, and I accept, that whilst Mr Johnson was rostered to teach practical classes, Mr Williams complied with the terms of Dr Verhoef’s certificates and Dr Fish’s recommendation, and instructed Mr Johnson to avoid heavy lifting and seek assistance where appropriate. Mr Johnson was to carry out his administrative tasks as he had in the past.[130]
[129]T131.
[130]Memorandum prepared by Mr Williams entitled ‘WorkCover History of Robert Johnson’ dated 21 September 2004 (Exhibit D9)

The question of this timetabling and the differences between the two men as to the work Mr Johnson should have been carrying out at this time goes to the heart of the bullying complaints made by Mr Johnson, which I shall deal with later.

Returning now to the incident, I am satisfied that on 25 March 2003, Mr Johnson sustained a significant injury to his back in the course of his employment. Notwithstanding the inconsistencies in reporting (particularly to Dr Verhoef), I think that Mr Johnson’s incident report and the notes of Mr Read included within it (and the follow up email from Ms Alex) make it more likely than not that this accident occurred when Mr Johnson tried to restrain the transmission from slipping off the bench. The accounts given to Mr Jones and Ms McKenzie tally, in a general sense, with this version. Allowing that the event is not adequately described by Mr Johnson in other contemporaneous accounts, it remains a plausible cause of his injury, particularly in light of the remarks of Dr Fish.[131] Whilst I am not satisfied that the immediate consequences were as described by Mr Johnson (i.e. the extreme, immediate pain he alleges), I am convinced that Mr Johnson sustained a significant worsening of his condition as a result of this incident and that it occurred when he endeavoured to restrain the transmission on the bench.
[131]See [106]-[107] above.

The clutch pack incident: June 2004

Mr Johnson says that he was allocated to four weeks of ‘heavy’ practical teaching in the workshop in June 2004. During the fourth week of teaching, in an automatic transmission overhaul session, he aggravated his back injury when passing a clutch pack (a small, cylindrical drum weighing 1-1.5kg) to a student.[132] His own assessment was that in combination with four weeks of workshop teaching and standing on concrete floors for long periods,[133] the simple twisting action (in passing the clutch pack to the student) caused his injury. The weight of the clutch pack was small: indeed, it was well below the 10kg lifting limitation that Dr Verhoef imposed six months later.
[132]T130.
[133]Mr Johnson initially said that he had been standing on concrete floors for 8 hours per day during this four-week period. Taking into account the morning, lunchtime and afternoon breaks, and the fact that there was seating available in the classroom, in reality the amount of time Mr Johnson would have been standing on concrete continuously was much less than this (as per Mr Williams’ evidence at T658-659).

Mr Johnson says that he squarely blamed Mr Williams for his injury, based on his view that Mr Williams had required him to engage in teaching beyond his limited physical capacity.[134] Mr Johnson asserted that the TAFE was in breach of the worksite assessment prepared by Dr Fish in October 2003, which specifically stated that he was not to teach any transmission classes. Mr Williams, however, insisted that it was possible to teach the various practical classes without lifting more than 10kg, as Mr Johnson could have asked other teachers to assist in setting up and packing up the equipment for the class, and sought the assistance of students to do any moderate to heavy lifting during the class.[135]
[134]T132.
[135]T656.

Mr Johnson asserts that he completed an incident report form almost immediately, and that this was witnessed by Mr Streader.[136] Mr Johnson said in the report that he had been asked to do heavy lifting work.
[136]T131.

Mr Streader gave evidence that in 2004 he witnessed an incident report pertaining to Mr Johnson, but that it had since ‘gone missing’.[137]
[137]T452-T455.

Dr Verhoef recorded in his notes a visit from Mr Johnson on 22 June 2004:

Mr Johnson said that instructing students on automatic transmission repair had aggravated his back. He told them that he was not ready for this type of work but they just told him not to lift anything heavy…[138]

[138]T360; Clinical notes of Dr Verhoef (Exhibit P10).

Overall, I consider that there is sufficient independent evidence to reach the conclusion that in mid-2004, whilst carrying out work on automatic transmissions, Mr Johnson twisted and aggravated his back when passing a clutch pack (which weighed 1-1.5kg) in the course of a lesson.

Other relevant findings of fact

In relation to the provenance of the back injury I have also reached the following conclusions:

· Mr Johnson suffered a back injury as an apprentice in 1971, which caused him to have time off work.[139] According to Mr Johnson, his back had recovered by 1976. Whether this account is accurate is uncertain, although I am satisfied that by 1992 this injury was quiescent.
[139]T64.

· Whilst the clinical notes of Dr Verhoef record, in 1992, a prior history of chronic back pain,[140] there is no evidence that in the ten years before April 2002, Mr Johnson had experienced any significant episodes of back pain. Nor, should I add, is there any evidence that his ‘chronic low back pain’ impaired his work capacity. Notwithstanding a number of references in the medico-legal reports to ongoing low back pain,[141] Mr Johnson denied such a history and this is corroborated by Dr Verhoef’s clinical notes.[142]

· There is no evidence to support the proposition that Mr Johnson’s general manual handling (which was intermittent and of moderate intensity) caused any incapacity to his back: much of his work was light, particularly that of classroom teaching. Rather, it seems that each of the isolated incidents, and particularly those of the engine stand and the manual transmission, produced the problems. This view is supported by Ms McKenzie, who after examining Mr Johnson stated in 2004 (when Mr Johnson was on light duties) that:

In my opinion Mr Johnson’s employment on 10 April 2002 [the engine stand incident] was the significant contributing factor to the occurrence of the back injury; his employment thereafter and in particular his employment on 12 March 2003 [referring to the manual transmission incident] further aggravated the condition.[143]
[140]Clinical notes of Dr Verhoef (Exhibit P10).
[141]E.g. Report of Dr Clive Kenna dated 22 November 2007 (Exhibit D13).
[142]Clinical notes of Dr Verhoef (Exhibit P10).
[143]Report of Ms Judith McKenzie dated 12 October 2004 (Exhibit P23).

Negligence and breach of statutory obligations on the part of the TAFE: the manual handling claim

The question then is whether any of the three incidents, which I have found proved, give rise to liability for common law negligence or for breaches of statutory workplace obligations on the part of the TAFE.

The principles: common law and statutory duty

The duty owed by the TAFE to Mr Johnson was described by the High Court in Czatyrko v Edith Cowan University[144] as follows:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[145]
[144](2005) 214 ALR 349.
[145](2005) 214 ALR 349, 353 [12] (citations omitted).
It was re-stated by the High Court in Leighton Contractors v Fox[146] in the following terms:
An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.[147]
[146](2009) 240 CLR 1.
[147](2009) 240 CLR 1, 12.

In addition to addressing the TAFE’s liability at common law, it is necessary to determine whether the work carried out by Mr Johnson in the various incidents was in breach of the Regulations.[148]
[148]Plaintiff’s Statement of Claim filed 7 August 2013, [5].

For any of regs 13, 14 or 15 to be engaged it is necessary to establish that Mr Johnson was engaged in ‘manual handling’ as defined by reg 5. As the term is defined as ‘any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object,’ it is clear that Mr Johnson was engaged in manual handling on each of the three incidents which caused him injury (although handling the clutch pack required minimal exertion).

Regulations 13 and 14 are enlivened if an activity falls within the definition of ‘hazardous manual handling’, as defined by reg 13(2). I have set out Mr Johnson’s tasks at [70]. I am satisfied that Mr Johnson was engaged in a number of hazardous manual handling tasks, as detailed in reg 13(2), when carrying out some of the teaching in the workshop. I regard the moving of the engine and the manual transmission as falling within this definition. I am dubious as to whether the handling of the clutch pack fits within this definition. In any event, I do not believe that this exercise posed a risk of musculoskeletal disorder as required by reg 15 — which is, as I discuss in a moment, the critical provision. It is to be noted that reg 15 does not necessarily involve hazardous manual handling, but manual handling generally.

Regulation 13(3) obliges an employer to ensure that any task involving hazardous manual handling is identified in a number of different situations, e.g. prior to any task involving manual handling being ‘undertaken for the first time in a workplace’; or if a ‘musculoskeletal disorder … is reported by … an employee’. Regulation 14 complements the previous regulation and requires an employer to ensure that a risk assessment is undertaken where hazardous manual handling has been identified in accordance with reg 13. The employer must ensure that the assessment is carried out in the prescribed way and, in certain circumstances, must record the results of that assessment.

For present purposes, it suffices to say that breach of either of these provisions does not, of itself, lead to a conclusion that such a breach is causative of injury. One regulation simply requires identification of the risk, and the other, the carrying out of a risk assessment.[149]
[149]See generally Papadopoulos v MC Labour Hire Services Pty Ltd (2009) 24 VR 665, [24].

In reality, the operative section for the purposes of a civil proceeding is reg 15, which imposes a positive obligation on an employer to eliminate or reduce the risk posed by manual handling. This provision does not use the expression ‘hazardous manual handling’ but rather refers to the risk of musculoskeletal disorder. It provides:

(1)An employer must ensure that any risk of a musculoskeletal disorder affecting an employee occurring —
(a) is eliminated; or
(b)if it is not practicable to eliminate the risk, is reduced so far as is practicable.

The expression ‘musculoskeletal disorder’ is defined in reg 5 to mean ‘an injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease which is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant.’

The word ‘risk’ is defined in the same provision of the Regulations to mean ‘the likelihood of an injury, illness or disease occurring due to exposure to a hazard’. The ‘likelihood’ referred to in this definition is that of ‘a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent’.[150]
[150]E.g. Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367)

I am satisfied that the impugned work on two of the occasions identified by Mr Johnson — the engine stand incident and the manual transmission incident — posed a risk of a musculoskeletal disorder to him within the meaning of reg 15. The clutch pack incident, whilst occurring in the context of an automatic transmission class, was essentially the equivalent of passing a carton of milk and posed no such risk.

The three incidents

I now address each of the three incidents and whether there was any breach of duty (common law or statutory) on the part of the TAFE and any contributory negligence on the part of Mr Johnson.

Engine stand incident: April 2002

As I mentioned earlier, the incident report filed on 12 April 2002 is consistent with Mr Johnson’s account given at trial about the difficulties in using the engine stand, and presents a negative assessment of their safety. In it, Mr Read writes:

Engine stands are very heavy, clumsy + unsafe to use as they do not move easily.[151]

[151]Incident report dated 25 March 2003 (Exhibit P3).

Under the heading ‘Controlling the risk’, Mr Read has ticked the box next to the words ‘Substitute less hazardous option.’

The TAFE contends that, notwithstanding the difficulties associated with the stand, Mr Johnson had ample opportunity to seek assistance from other staff, and that this was the appropriate course for Mr Johnson to adopt: he knew the stand was difficult to move (bracing himself before each attempt), and he had injured his back in the past. Mr Williams stated that there was ‘ample time’ between 4:30 and 5pm to seek assistance from other people in the staffroom to assist in packing up.[152]
[152]T703.

I do not accept the submission made by the TAFE that, in effect, a reasonable system involved Mr Johnson seeking (without direction or instruction) assistance from other staff. The decisions of the High Court in cases such as O’Connor v Commissioner for Government Transport[153] and McClean v Tedman[154] answer that proposition. An employer’s obligation is to devise and maintain a safe system of work. In McClean, the majority of the Court said:

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.[155]

[153](1954) 100 CLR 225, 229.

[154](1984) 155 CLR 306 (McClean)

[155]McClean, 313.

It is unreasonable to expect a teacher manoeuvring an engine stand to go searching for the assistance of other teachers — particularly late in the day. Other teachers may not be available, or may be unwilling to assist. The reasonable solution to the problem was the provision of an appropriately moveable engine stand which would not jam. I infer from Mr Read’s report that this was a problem that was known to the TAFE, and I also infer from Mr Johnson’s evidence (which was not challenged on this point) that a ready solution was available. I am satisfied that there was a breach of the common law duty of care owed by the TAFE to Mr Johnson.

Mr Johnson, corroborated by Mr Streader,[156] gave evidence (which was undisputed) as to the introduction of a new form of engine stand not long after his accident. There was no suggestion that such a device could not have been obtained at an earlier point in time.
[156]T447.

I am also satisfied, for similar reasons, that reg 15 of the Regulations was breached by the TAFE. The risk of the engine stand sticking was known to the TAFE, as indicated by the incident report. A practical way of fixing the problem would have been to use an appropriate mechanical aid, or to replace the faulty engine stand, such as that provided in 2006.[157]
[157]See [67] above.

The principles in Malec remain good, as was demonstrated in Tabet v Gett,[394] in which Gummow ACJ said as follows:

The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant.[395]

[394](2010) 240 CLR 537. .

[395](2010) 240 CLR 537, [39] (citation omitted).

Kiefel J also said:

Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, the hypothetical may be conjectured. The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible.[396]

[396](2010) 240 CLR 537, [136].

Recently, in Smith v GellibrandSupport Services Inc,[397] the Court of Appeal said of this issue:
[397][2013] VSCA 368.

In Seltsam Pty Ltd v Ghaleb, Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
(a)In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.

Ipp JA continued:
What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott) Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas, the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

Ipp JA’s analysis has been followed by the New South Wales Court of Appeal in Varga v Galea and Ridolfi v Hammond. We also respectfully agree with it. It fortifies the conclusion that it was both proper and indeed necessary for the trial judge to direct the jury by reference to the concept of vicissitudes as he did.[398]

[398][2013] VSCA 368, [71]-[73] (citations omitted).

Therefore, the assessment of damages for both pain and suffering and loss of earning capacity is to be undertaken, as the High Court stated in Malec, according to the following principles:

Whatever the precise chance that the plaintiff would have developed a similar neurotic condition, the majority in the Full Court erred in refusing to award him any damages for the care and attention given to him by his wife and for the neurotic condition from which he presently suffers. The plaintiff is entitled to damages for pain and suffering on the basis that his neurotic condition is the direct result of the defendant’s negligence. Those damages must be reduced, however, to take account of the chance that factors, unconnected with the defendant’s negligence, might have brought about the onset of a similar neurotic condition. Likewise, the plaintiff is entitled to compensation for the care and attention provided by his wife. Again that award must be reduced to take account of the chance that factors, unconnected with the defendant’s negligence, would have necessitated similar care and attention.[399]

Application of the principles to this case

[399](1990) 169 CLR 638, 645.

I have concluded that had the TAFE not breached its duty of care to Mr Johnson, Mr Williams would have handled his dealings with Mr Johnson differently at the March in-service meeting, with the result that Mr Johnson’s psyche would not have suffered a further insult. At the risk of being justly criticised for repetition, the events preceding that episode (which clearly played a significant part in Mr Johnson’s psychological state) were not the result of any breach of duty on the part of the TAFE and are not the subject of any award of compensation. To the contrary, those events must be taken into account in assessing the prospect that Mr Johnson would have ended up in a similar psychological condition notwithstanding the TAFE’s negligence.

Unfortunately, these findings make it particularly difficult to determine the appropriate award of damages. Despite my invitation, neither counsel was prepared to grapple with the prospect of the conclusions I have reached – presumably for good forensic reasons. Mr Johnson’s counsel reiterated that the claim was for the entirety of the so-called bullying period, and/or if this was not accepted, from the provision of the first capacity certificate in March 2005 regardless of the timing of the breach. . Counsel for the TAFE merely repeated that his client could not be liable for any award of damages.

The problem is compounded by the fact that, with one highly qualified exception, none of the medical evidence addressed the effects alone of the March in-service meeting. The opinions contained in the reports of Drs Pastore and King are based upon acceptance of Mr Johnson’s account of his bullying and mistreatment by Mr Williams. Dr Strauss, whilst satisfied that Mr Johnson perceived that he had been bullied, was not satisfied that objectively there was a relationship between Mr Williams’ behaviour and Mr Johnson’s psychiatric state. Understandably, none of the opinions examines in any detail the effect of the March in-service meeting incident, as opposed to the effects of the other (non-tortious) work-related incidents on Mr Johnson’s mental state.

Notwithstanding these difficulties, the authorities make it clear that a judge must do the best he or she can to determine an appropriate award of damages on the material adduced.[400] With that proposition squarely in mind, I consider that the following matters are relevant to this analysis.
[400]See New South Wales v Moss [2000] NSWCA 133, [87]. Also Tabet v Gett (2010) 240 CLR 537, [136].

First, I consider that as a result of Mr Johnson’s current psychological condition:

(a)he is unable to work;
(b)his lifestyle and enjoyment of pastimes is significantly affected, as described by Drs Verhoef, Pastore and King; and
(c)he remains fixated with the way he was treated at the TAFE.

Second, as the evidence of Mr Brittle demonstrates, Mr Johnson was contemplating leaving the teaching profession as soon as he could. Mr Johnson’s run-ins with management in the past had destroyed his satisfaction with work, and the ongoing difficulties in his relationship with Mr Williams prior to March 2006 reinforced that situation.
Third, Mr Johnson’s psychological state was patently fragile during mid to late 2005 and early 2006. He was battling to cope with what many would regard as regular incidents of teaching duties. His reaction to the student cheating incident exemplifies this: there was no aspect of bullying on the part of Mr Williams in dealing with this incident; rather, Mr Johnson (whom I am satisfied was particularly antagonistic to Mr Williams by this time) formed the view that Mr Williams had not handled the situation appropriately. I have a significant doubt as to whether Mr Johnson’s real concern was Mr Williams’ treatment of the students. Rather, I think it was just another incident in what was a particularly unhappy working relationship, such as Mr Johnson had experienced years earlier with Mr Herron.
In a similar vein, the things happen incident also took a significant toll on his mental state as recounted to Dr Pastore. It is to be remembered that in the incident there was no distinct threat of either actual or imputed physical violence. Rather, a student had made an unsavoury allegation that many teachers would simply ignore. Mr Johnson’s reaction, to my mind, shows that by this time he was virtually at the end of his tether.

In comparison to many other events described by Mr Johnson at the trial (and which barely rate a mention in Dr Pastore’s notes), this incident is described in detail. Dr Pastore said of the incident:[401]

I would probably say that was almost the straw that broke the camel’s back. I think it was also probably a reasonable incident, in terms of what happened to Mr Johnson and if I could expand further for the court, if you allow, I think he had already been suffering from accumulated stress to this particular point in time so this was again, one more incident that he has gone through which I think had decompensated him mentally, in terms of being quite fragile at that particular point in time. So yes, I think it was an important incident.
…
I think by the time I got to this particular incident it was, like I say, one of the straws that broke the camel’s back where there was this mistrust in the workplace, couldn’t approach the employer. Mr Johnson probably already knew what reaction he may or may not get from this manager, given what had happened prior, hence the focus on this particular incident as the time.[402]

[401]T563.

[402]T567.

In a history taken by Mr Brearley (Mr Johnson’s medico-legal consultant) in March 2011, the following is noted:

In February 2006 he says he had a very unpleasant confrontation with a rebellious student which upset him greatly and he says this was the ‘straw that broke the camel’s back’. He says he began crying and he ceased work at this time. At the end of April 2006 he felt he could no longer continue because he was so upset and stressed and he has not worked since that time. He did apply for a part-time job as an automotive salesperson in December 2009 but his application was unsuccessful. He has not applied for any further work and he is in receipt of a disability support pension.[403]
[403]Report of Mr Kenneth Brearly dated 30 March 2011 (Exhibit P14).

I also repeat what was said by Dr Strauss who ,in my view, accurately opined :
I have emphasised that this man has a history of anxiety and depression which goes back a long way and I have stated that it is possible, particularly if he was not bullied or victimised at work, that his current psychological problems are simply longstanding psychological problems that would have affected him irrespective of employment.[404]
[404]Report of Dr Strauss dated 19 August 2014 (Exhibit D21).
As I mentioned earlier, this opinion is consistent with the statements made by Mr Johnson to Mr Brittle and the contents of the questionnaire.
In summary, all the evidence points to a man with significant longstanding psychological issues struggling to cope with his work environment and demoralised by his own work situation.

The only evidence directed specifically to the effect of the March in-service meeting came from Dr Pastore. He was asked by counsel for Mr Johnson about the effect that it would have on his client. He said:

I would say that was a critical point, very critical and quite significant in his eventual decompensation… He would have been quite demoralised by this point in time, self-confidence quite low, self-esteem maybe in tatters. He comes back to return to work. I would presume that his head is about trying to get back into the workforce and you are put down in front of your colleagues and quite significantly, so it would be a critical moment. Quite a critical moment yes.[405]

[405]T531 and see also T534.

I should also refer to another answer given in evidence-in-chief by Dr Pastore:

Can I ask you in relation to this penultimate day that I described to you that you gave evidence was critical even on that day when he returned to work and he found himself in a supportive environment where he was being welcomed back on the one hand as distinct from happened to him what do you say as to the likelihood of a different outcome being achieved for him, in terms of being able to recover from his anxiety and depression?---Again, I will say it could have been different. But by this stage he was already suffering, I would say, to a reasonable extent. But that was certainly the critical point that basically devastated him completely so I think his psychological function after that period of time was quite limited.[406]

[406]T534.

These answers, which I treat with considerable scepticism, must be examined in context. Dr Pastore did not see Mr Johnson until 2008. This incident is not mentioned in any of his reports, nor does it form any part of the history taken by Dr Pastore in his many consultations with Mr Johnson. It would appear that he was first asked to consider the effects of this incident during the trial, over eight years after its occurrence. Dr Pastore’s responses relied upon the description of an event provided to him in his evidence-in-chief, by counsel for Mr Johnson.

It is abundantly clear that the focus of Mr Johnson’s concerns (as expressed to Dr Pastore during his clinical attendances rather than in the adversarial context) was the things happen incident in November 2005 which is referred to in each of the reports. It is notable, as I mentioned earlier, that Dr Pastore’s extensive and detailed first report containing a diagnosis of an adjustment disorder with mixed anxiety and depressed mood only identifies this incident specifically in the context of the relationship between Mr Johnson’s work and his psychological condition.

Moreover, I have no doubt, as the answers to Mr Brittle’s questionnaire demonstrate, that Mr Johnson has a tendency to become obsessed and preoccupied with wrongs done to him by others. There was a significant risk that any interaction between himself and Mr Williams (no matter how benign) could have produced the final insult to Mr Johnson’s psyche which would result in him ceasing work.

In summary, I am convinced that Mr Johnson would not have continued to work as a TAFE teacher for much longer, even if the March in-service meeting had not occurred. I think that incident was simply the final straw that broke a particularly fragile camel’s back.

I am satisfied that within a short period of time – at most a couple of years after the March in-service meeting– Mr Johnson would have been in exactly the same psychological condition as he currently is due to the other events in his life which impacted his psyche.

Assessment of pain and suffering and pecuniary loss damages

Counsel for Mr Johnson submitted that an appropriate award of damages for pain and suffering was $300,000:

having regard to the severity of Mr Johnson’s primary psychological symptoms as described in his evidence (unchallenged) and as described in the reports of his treating practitioners and again in Dr King’s reports’.[407]

[407]Plaintiff’s closing submissions, [54].

Apologising again for repetition, this submission does not address the findings I have made. To accept this submission, it would be necessary to assume that all the psychological insults alleged by Mr Johnson as resulting from his employment were compensable.

As I have endeavoured to explain, I am satisfied that Mr Johnson’s problems with anxiety and depression which substantially affect his lifestyle (to the point where he has become extremely isolated and unable to engage in most recreational activities) would, regardless of the March in-service meeting, have been felt by Mr Johnson within two years of the date of that incident. To put it another way, I am satisfied that any adverse effects on Mr Johnson’s psyche resulting from the March in-service meeting would have been subsumed by his overall psychiatric condition (unrelated to any tortious conduct on the part of the TAFE) within two years of the March in-service meeting.

I think an appropriate assessment of his pain and suffering damages resulting from this event is $110,000.

On the figures produced by Mr Johnson’s counsel (based on the agreed figures contained in Exhibit P25), the undiscounted amount for past loss of earnings was $561,404 with approximately $48,125 in relation to future loss of earning capacity to age 60. Counsel submitted that a further amount of $100,000 should be allowed for loss of earning capacity after age 60.[408].
[408]Plaintiff’s closing submissions, [51]-[53].

Applying the principles in Malec,[409] and for the reasons I have discussed, the prospect of Mr Johnson working to age 60 in the normal course of events (i.e. absent the effects of the March in-service meeting) was no more than one in five, or 20 percent. There was no prospect of him working past age 60.
[409]See [453] above.

The undiscounted figure for economic loss (mostly in the past with only a matter of months in the future) to age 60 is roughly $610,000. Consistent with my finding as to the prospects of Mr Johnson working to age 60 this figure should be reduced by 80 percent, producing a sum of $122,000. This tallies in a general sense with what Mr Johnson would have earned if he remained in employment for approximately two years after February 2006.[410] There is no reason to make any further discount of this amount.
[410]Statement of Agreed Figures (Exhibit P25).

Mr Johnson is, therefore, entitled to judgment in the sum of $110,000 for pain and suffering and $122,000 for pecuniary loss.

Summary of conclusions

The following is a summary of my conclusions:

(a) The TAFE breached its duty (common law and statutory) to Mr Johnson in relation to both the engine stand and manual transmission incidents.

(b)Mr Johnson sustained an injury to his back (primarily) and to his neck in each of the two incidents.
(c)Mr Johnson is entitled to damages for pain and suffering of $125,000 in relation to those two incidents.
(d)Mr Johnson was not bullied or harassed by Mr Williams.
(e)The TAFE breached its duty (common law) to Mr Johnson by failing from mid-2005 through to March 2006 to intervene in the ongoing conflict between himself and Mr Williams.
(f)The TAFE’s failure to intervene by post-mid-2005 was a cause of Mr Johnson’s final breakdown at the March in-service meeting in 2006.
(f)Mr Johnson’s damages for psychological injury as a result of the TAFE’s failure to intervene in his conflict with Mr Williams should be assessed at $110,000 for pain and suffering and $122,000 for pecuniary loss.

I will give the parties the opportunity to consider these reasons and to prepare minutes of orders reflecting my conclusions.

[2014] VSC 626

12 December 2014