O'Donovan v Western Australian Alcohol and Drug Authority - [2014] WASCA 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: O'DONOVAN -v- WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY [2014] WASCA 4

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 11 NOVEMBER 2013

DELIVERED : 9 JANUARY 2014

FILE NO/S: CACV 18 of 2013

BETWEEN: ANNE O'DONOVAN
Appellant
AND
WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :O'DONOVAN -v- WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY [No 2] [2013] WADC 13
File No  :CIV 148 of 2007

Catchwords:

Torts - Negligence - Claim for damages for psychiatric injury - Whether psychiatric injury was reasonably foreseeable - Whether trial judge applied objective test of reasonable foreseeability - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Dr A S Morrison QC & Mr G Droppert
Respondent: Mr D R Clyne

Solicitors:

Appellant: Bradford & Co
Respondent: Jarman McKenna

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

Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
O'Donovan v Western Australian Alcohol and Drug Authority [No 2] [2013] WADC 13
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Sutherland v Hatton [2002] 2 All ER 1
Swan v Monash Law Book Co‑operative (t/as Legibook) [2013] VSC 326
Wolters v University of the Sunshine Coast [2013] QCA 228
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

REASONS OF THE COURT:

Introduction

This is an appeal against a decision by the primary judge to dismiss the appellant's claim for damages against the respondent, her former employer, in respect of psychiatric injury. The appellant had alleged, inter alia, breach by the respondent of its general law duty of care as an employer in connection with her employment in the period May 2004 to November 2004. The appellant's principal complaints were, relevantly, in respect of:
(a)changes made to her work roster in May and August/September 2004 (the roster issue);
(b)her requirement to take leave between 29 June 2004 and 21 August 2004 in respect of accrued, but untaken, public holidays (the enforced leave issue);
(c)the investigation into her conduct in injecting herself with Maxolon, taken from the respondent's medication cabinet in October 2004 (the Maxolon incident);
(d)the respondent's response to her conduct in November 2004 in omitting to record the dosage of Valium she had administered to a patient (the Valium incident); and
(e)work environment issues generally, including the way that management had dealt with other staff (the work environment issue).
The judge dismissed the appellant's claim for damages primarily on the basis that the appellant had failed to prove, for the purposes of establishing breach of duty, that the risk of psychiatric injury was reasonably foreseeable. However, he also found that even if risk of psychiatric injury was reasonably foreseeable, the employer took steps to minimise the risk which were a reasonable response to the risk.
He also dismissed the appellant's claims for breach of contract on the grounds of remoteness of damage.
For the reasons which follow the appeal should be dismissed.
The background facts were essentially not in dispute and may be taken largely from his Honour's findings in his reasons in O'Donovan v Western Australian Alcohol and Drug Authority [No 2] [2013] WADC 13. (All references to paragraph numbers are references to the paragraph numbers in those reasons unless otherwise indicated.)

Background

The appellant was, at the time of events in question, employed by the respondent (the employer) as a registered psychiatric nurse at the employer's detoxification clinic in East Perth. She initially commenced part‑time employment in 1993 doing 40 hours per fortnight. She preferred, and did, nightshift work. By 1998, she had become a full‑time employee. She then had an 80 hour fortnightly roster, doing 5 x 10 hour nightshifts in the first week and 3 x 10 hour nightshifts in the second week.
Around 2003, the employer engaged a new chief executive officer, Mr Allsop. Beneath him were two managers, one of whom, Ms Green, was responsible for inpatient and outpatient services. Underneath those managers was a clinical nurse specialist, Mr Ross. There was also a human resources manager, Ms Zandvliet, based at the employer's head office in Mount Lawley.
In 2003, the appellant was having serious teeth and temporomandibular joint (joint of the jaw) problems. Those difficulties were part of the reason, she explained to management, that she wished to change her work roster to four nights a week. In late 2003, in accordance with the appellant's request, the employer changed the appellant's rosters so that she worked four nights a week rather than a five night week followed by a three night week.
In December 2003, the appellant applied for 840 hours annual leave over a period to January 2005, because Ms Green told her to do so. She was granted half of the leave she applied for, and was not given two weeks leave in July 2004 that she had requested, which was to coincide with a visit of a relative to Perth.
In May 2004, the appellant wanted to continue working four night shifts per week, but did not wish to work Wednesday nights because she had a friend with cancer who she helped on Thursdays. She raised the question of her roster with Mr Ross, but did not tell him the reason why she wanted to avoid Wednesday nights. Mr Ross responded in unhelpful terms.
The appellant also raised her roster arrangements with Mr Allsop. She told him of the reason for not wanting to work on Wednesdays. She also spoke to Mr Allsop about other concerns she had with management, including the way that one of her colleagues had been treated. She told Mr Allsop that she feared she would be 'targeted' the way that she said other staff had been targeted. Mr Allsop told her that he had faith in his management team.
Following this, and with effect from 14 May 2004, her roster involved working one Wednesday each fortnight. The appellant thought that she was being targeted. Correspondence was exchanged between the appellant and the employer on 24 May 2004 and 1 June 2004.
In the period 29 June to 21 August 2004, the appellant was required to take leave by reason of certain accrued, but untaken, periods of public holiday leave (the enforced leave issue).
The appellant was notified in a letter from Ms Green of the requirement on 1 June 2004. The appellant responded to Ms Green by letter dated 12 June 2004 in the following terms:
Dear Stephanie,
Thank you very much for your letter dated 1 June 2004. I would like to thank you for pointing out to me the conditions of my leave and the rules and regulations that I was not aware of.
In your letter you mentioned a letter you sent to me on 4 November 2003. I am not aware of receiving that letter and wonder if I can obtain a copy please.
Currently I am having difficulty working out my leave situation with regards to scheduling life with my family. I have recently contacted the pay office to get all my leave details and I will put together a plan and will submit this to you in the near future.
The appellant wrote again to Ms Green on 20 June 2004:
Dear Stephanie,
Further to my letter of 12 June where I mentioned I was having trouble rescheduling my leave at such short notice.
Because I am having so much difficulty I wonder if I can consult with you with regard to some possible alternatives.
By letter dated 22 June 2004, Ms Green indicated that she would welcome the opportunity to discuss with the appellant the question of further leave, but in the meantime she would be required to take leave from 29 June 2004 to 21 August 2004.
On 23 June 2004, the appellant wrote to Ms Green and said:
Grievance
Dear Stephanie,
Please accept this grievance notification concerning the enforced allocation of accumulated [public holiday leave] …
As per the award ANF‑WA Public Sector Award 1994 section 25. I have been asked to clear the backlog of 300 hrs accrued Public Holiday leave at short notice and at a personally inconvenient time.
This despite having requested and submitted [leave] applications on the 10 December 2003 which would have cleared outstanding PH entitlements by February 2005.
I am concerned that a situation has arisen where nurses have been unable to access adequate leave, leading to a situation where there is serious backlog to [annual leave] entitlement necessitating random and arbitrary allocation of leave often in excess of two weeks. Pursuant to the above I will be taking my [annual leave] from 10/7/04 resumption date 26/7/04.
I will therefore be present for duty on 29 June 2004 at 22.45 hrs unless this matter is resolved beforehand.
Following receipt of this letter, the human resources manager, Ms Zandvliet, met with the appellant on 28 June 2004. The appellant told Ms Zandvliet that her health was being affected and she felt 'very, very, stressed'. She was unsure whether she told Ms Zandvliet that she was seeing her family doctor at the time. The leave issue was not resolved to the appellant's satisfaction at the meeting.
As the appellant, in this appeal, placed considerable reliance on the meeting with Ms Zandvliet on 28 June 2004, it is appropriate to set out her evidence in chief with respect to that meeting. No contemporaneous note of it was produced and there was no mention of the meeting in the appellant's letter to Mr Ross dated 7 September 2004.
Ms Zandvliet gave no evidence (in chief or in cross‑examination) about it. The appellant's evidence of the meeting was as follows:
So did you come to have the meeting with [Ms] Zandvliet on the morning of 28 June---Yes, I did. I - I believe she came in a little bit earlier, like 7.30 or - or something - seven - between seven and quarter - I'd normally finish at quarter to eight, your Honour, but I think she came in a bit earlier to discuss it with me.
So you had the meeting---Yes. That's correct.
What did you discuss---?---Well, I discussed quite a number of things with her because I was - but my one - main issue that I wanted to discuss was my being - I felt I was being forced to take public holiday leave without consultation and I thought that this was unfair and I asked her, 'Is there a process whereby we can discuss this because I have two children. I would like to get my,' you know, to plan a holiday if they're going to force me to take it, and I also discussed other issues that I felt - because I knew that management were doing changes and I was all for trying to help them so I discussed issues with her like perhaps if they put a roster up somewhere so that someone could see if leave - that would be more helpful to people so that this would never happen to anybody else again. I discussed with her issues - I told her, you know, I was - I don't know whether I'd met her before, that as a single mum with two children and my desire for consultation. I told her - I just - give me a minute, I haven't gone through these - - -
DROPPERT, MR: Can I ask you - - ----I - sorry, I remember something. I told her - I gave her a copy of - Bob Kachera (?) had this booklet and the booklet was left in the office and there's a mention of it in minutes of meetings. So I actually took the booklet with her and I showed her and I said, 'It's about family friendly initiatives,' and I asked her, 'Did she receive - has she seen a copy of this book because the book is - clearly says about consulting and family friendly initiatives and trying to keep, you know, people happy within the workforce and have a consultative process and she said to me, 'No, she hadn't' and I said, 'Well, that's - that's a shame, [Ms Zandvliet], because, you know, you - you would - you'd benefit by reading this book and consult with staff.'
Were you happy with the way that you were dealt with on the roster issue? Sorry were you happy with the way that you'd been dealt with on the public holiday leave issue---Not at all.
How did you feel about that---I felt that they were targeting me to tell the truth. I had - this is - comes from my seeing Mr Allsop and [Mr] Ross and specially Mr Allsop where I told him that my fear of coming to see him and - would be that I would be targeted through the leave and through the rosters. And I remember very clearly Mr Allsop telling me that - he assured me that I would not, as coming in good faith to see him, be targeted through my leave or my rosters. So I - I felt that I hadn't been heard.
And did that come up in your conversation with [Ms] Zandvliet---Yes, it did.
How did it come up---I brought it up. I said to her, you know, I can't remember the exact words, but I told her I felt that I was being targeted as a result of me going to see Mr Allsop.
DROPPERT, MR: All right. And what effect was that - were those feelings having on you at that time---Well, I had - I had seen what management had done to one of my colleagues and that was another reason, your Honour, why I went to see Mr Allsop, because [another nurse] was a single mother with one child. She was a 35‑year old nurse and she was a very, very good nurse. She got on really, really well with the patients and they all loved her. In fact, I think she got glowing reports when they had some customer like, you know, client satisfaction surveys and [the other nurse] had been - - -
…
I'm not trying to cut you off but can I ask you by the time you had the meeting with [Ms] Zandvliet on 28 June---Yes.
What effect did your feelings about being targeted have on you---Well, I had already been to see my [general practitioner] in June because I was feeling like really stressed cos I'd seen the way - what they were doing to other people, I was assured by Mr Allsop that this wouldn't happen to me and this meeting with [Ms] Zandvliet when she said that I said to her - I remember saying, 'I feel as if I'm being forced to take this leave. Is it a result of your financial obligations,' and she assured me that it wasn't. But I still felt that I was being targeted, as they had done to - to [the other nurse].
It - did the issue of your health come up in the meeting with [Ms] Zandvliet---Yeah. I told her that I was very, very stressed and I don't know whether I said - I think I might have said that I'd seen my [general practitioner] and felt that my - this was really affecting my health and could they please resolve the issue in a - in a consultative manner.
Can I break that down into two parts? There's the question of whether you told her that you'd seen your [general practitioner], and then there's a separate question of whether it was affecting your health. If we can work backwards------Yeah, okay.
- - - because you put it in one sentence---I'm sorry.
Did - did you - did you------I remember clearly telling her that this was affecting my health.
DROPPERT, MR: Right. And------And that I was stressed.
Right. And in respect of whether you told her you'd seen your [general practitioner]---Yeah, I'm - maybe I didn't, but I know in my brain I did. Perhaps I didn't mention it to her, but I clearly remember I told her that this was affecting my health.
And was the leave issue resolved to your satisfaction at that meeting---No. In fact, she said that she would - we had another meeting on the meeting of - the - the day of the - the 29th, after my night shift meeting.
And did you receive a letter - sorry. Did you have any discussion either with - I withdraw that. Did you receive any correspondence from [Ms] Zandvliet following your meeting on the 28th---I think it was on the 29th she came and she handed me a letter (ts 187 ‑ 190).
By letter dated 29 June 2004, Ms Zandvliet wrote to the appellant in effect informing her that she had discussed the matter with Mr Allsop and that the employer's letter dated 1 June 2004 giving her 28 days' notice to commence taking the accrued public holiday leave would stand. The employer's view was that the status quo was that she would continue to take her leave in accordance with the published roster, and that if she reported for duty on 29 June 2004 as she had suggested she would, that would involve a contradiction of a lawful instruction and that disciplinary action might be initiated.
The appellant took leave as from 29 June 2004.
Around 21 August 2004, when she was due to return to work, she telephoned work and found that she had not been put on the work roster for that fortnight. The roster for the fortnight commencing 27 August 2004 published on 18 August 2004, had her scheduled to work four nights in the first week (Sunday, Monday, Tuesday and Wednesday) and four nights in the second week (Saturday, Sunday, Tuesday and Wednesday) [27], [373].
Elsewhere, the judge found that the change in roster was such that the appellant went from working one Wednesday in two to working three Wednesdays in four [224], [235], [246].
On 23 August 2004, Mr Ross sent the appellant an email apologising for the oversight for not having her rostered to return to work on 21 August 2004. He suggested options to rectify the situation and advised that he would make the necessary adjustments to the roster.
By letter to Mr Ross dated 7 September 2004, the appellant expressed concerns over her enforced leave and the roster changes. She wrote, in terms in which (using abbreviations) she designated herself as 'AOD', Ms Green as 'SG' and Mr Ross as 'CR' (GAB 8 ‑ 10):
Dear [Mr Ross]
Thank you for your email of the 23 August 2004. As background you will be aware that at the present time I have an unresolved 'grievance' associated with my treatment over enforced leave. This grievance was raised as an 'issue' and then lodged through Next Step management according to the procedure set out in Section 19 of the Agreement*. This grievance is currently being considered by others.
I would like to bring to your attention a second 'issue' that is now of immediate concern to me. It concerns my work roster and it's recent change from that to which I have been working for the last 11 years. I wish this 'issue' to be treated according to the procedure set out in Section 19 of the Agreement* and accordingly seek a formal written response.
I was informed on 22/06/04 that I would commence leave on 29/06/04 and that I would be committing an unlawful act if I presented for duty before the 21/08/04. The following events have occurred to me during the process of returning from leave, and I wish to ask why?
19/08/04 AOD E‑mailed SG re:
1.What time is AOD to commence work?
20/08/04 Receptionist gave wrong email address SG did not receive email.
21/08/04 09:55 Telephone Call to SG re:
1.AOD asked: Why not advised of roster (viz: the expected date of return)
2.AOD asked: when to commence work?
3.SG asked if AOD had been advised by HR? - AOD replied No!
4.AOD told that HR will deal with AOD on Monday 23/08/04
23/08/04 10.00 Telephone call from CR re:
1.Return to duty times finally discussed
2.AOD expressed concern about points 1 and 2 above.
23/08/04 Email CR to AOD
1.Sets out return to duty date for [AOD].
24/08/04 AOD Returned to duty:
1.No access to computer emails at Next Step.
2.Roster set out that AOD work Tuesday night (only!)
25/08/04 Telephone AOD to CR:
1.Computer unavailable to Next Step for requested written communication.
2.Receptionist emailed CR that AOD unable to find requested information.
3.AOD not rostered for the Wednesday or the Thursday as discussed 23/08/04.
4.Consequently AOD again requested written clarification of roster.
25/08/04 17:30 Telephone Call: AOD to Next Step:
1.AOD informed that AOD has now been placed on roster.
26/08/04 Brief Meeting CR:
1.AOD pointed out errors in published roster.
2.AOD expressed concern over this unusual treatment relating to the roster.
3.AOD stated: 'I feel I am being intimidated through the roster system'.
06/09/04 Roster published:
1.Roster provides only 1 consecutive night off for AOD:
2.AOD not contacted or consulted on roster changes.
3.AOD believes this treatment may be in contravention of the Award*
16/09/04 Roster published 31/08/08 [sic - 31/08/04] (available for staff observation 02/09/04)
1.AOD provided with 8 days notice of roster.
2.AOD's roster is completely changed from the constant roster for the last 11 years.
3.AOD not consulted, warned or notified of changes to roster.
4.AOD believes this treatment may be in contravention of the Award*
Note:
Agreement* -The Nurses [WA Government Health Services] Agreement 2001
Award*- The ANF-WA Public Sector Award 2002

Her letter to Mr Ross dated 7 September 2004 continued:
I have stated to you personally and repeated above that 'I feel I am being intimidated through the roster system'. In fact I believe that I have now been unfairly treated using both the leave and roster system as a direct consequence of expressing my concerns to … management in the beginning of May 2004.
At the first meeting with Mr S Allsop and at a subsequent meeting with you the following day, I openly and honestly expressed concerns regarding issues of a procedural nature … and some personal concerns about staff morale and the treatment of a number of colleagues … I personally regarded that the treatment received by these colleagues constituted victimisation, intimidation and bullying in the workplace. There are also issues of legality involved that concern procedural documentation, its update, modification, storage and dissemination to staff. Of particular concern was procedural documentation related to an event that culminated in a suicide attempt by one member of staff accused of actually violating procedures that were subsequently modified. However I felt I could not sit back and remain silent while my work colleagues were clearly suffering and presenting with medical conditions brought about by what I interpreted to be unfair treatment by … management. It is important to note that up until that point in my previous 11 years employment I received kind and considerate treatment by [the employer].
[The employer's] management are well aware of the work I do, my attitude to our clients and others and the way I go about my work in the service of others. It will be no surprise to you that I love my work … and that I attempt to contribute the best that my 30 years of experience in this field will allow me. I have never complained before and I come to you on behalf of others. The point of going to Mr Allsop and to you was to get [the employer] to consider the issues I raised and some possible constructive solutions that I posed. At the end of the first meeting Mr Allsop stated: 'There will be no repercussions regarding your work conditions here or your treatment because you have come to me openly with these issues'. At the end of my meeting with you, you stated, 'you do your work Anne, I will do my work'.
It is worth noting that since expressing these concerns to management, I have received no reply or feedback on the original concerns. [The employer's] managerial response to me has been restricted entirely to imposing leave on me and imposing changes to my roster.
I now have no alternative but to interpret the chronology of events and documentary evidence associated with the first Issue (my leave, now a Formal Grievance) and the second Issue (my roster, not yet a Formal Grievance) to be the very type of victimisation, intimidation and bullying that I came to discuss with you and Mr Allsop in the first place. I feel I am being unfairly treated with regard to both issues and both are contrary with Mr Allsop's assurances to me.
Consequently, could I please request a written response to the points I have raised above, in particular:
1.Why has it been so difficult for me to start back at work?
2.Why has my roster been changed?
3.Why was I only given one night off?
4.Why I am having difficulties with my leave and roster after I came to you with good intentions.
On 16 September 2004, Mr Ross replied:
'Management can change the pattern of the roster that is worked to ensure that gender balance and skill mix is appropriate. Your permanent night duty arrangements have not been amended in any way and you still receive your contracted hours so it is my view that we are complying with your employment requirements. It should also be noted that you yourself changed your roster pattern which affected roster patterns of other staff early this year' [32].
On 10 October 2004, after having undergone certain dental treatment, the appellant became nauseous at work. She had been prescribed intra‑muscular Maxolon injections for nausea, but had no Maxolon with her at work at the time. She went to the medication room at work, took some Maxolon and self‑administered it by injection. She made an entry in the staff communications book in that regard.
Subsequently, Mr Ross required her to complete a Drug and Alcohol Office Clinical Incident Report Form with respect to the taking of the Maxolon. The appellant offered to replace the Maxolon she took, but her offer was declined. Mr Ross advised her that there would be an investigation into the incident. She responded with a detailed 14 page letter addressed to Mr Ross and copied to Mr Allsop. She denied any intention to steal the Maxolon and believed that the purpose of the investigation was to accuse her of theft. She was also concerned about keeping the incident confidential. She emailed Mr Ross about her concerns. He replied, but for some reason she did not receive the reply. (These events comprise the 'Maxolon incident'.)
She went into work 'extremely distressed, upset and very tearful because [she] was very concerned about confidentiality'.
She had a meeting with Mr Ross. By letter dated 1 November 2004, Ms Zandvliet wrote to her and said:
We have closed our preliminary assessment of your action in this matter and contrary to our previous advice we will now not be taking this matter to a full investigation. You will be advised of our decision regarding the outcome of this matter shortly pending our assessment of other issues surrounding this incident [64].
She subsequently received a letter dated 22 November 2004 from Ms Zandvliet with the heading 'First Warning'. Ms Zandvliet wrote:
You are now formally advised that your conduct is unacceptable to the Drug and Alcohol Office. Unless significant improvement is made, and sustained, your contract of employment with the Drug and Alcohol Office will be reviewed [65].
The judge also found that the letter went on to detail her actions concerning the use of Maxolon medication and the corrective action that was required to meet an appropriate level of conduct. There was also mention of a referral to the Nurses' Board of Western Australia (Nurses' Board). Although the appellant was devastated to learn that she would be reported to the Nurses' Board over the Maxolon incident, she was never called on by the Nurses' Board.
On 8 November 2004, the appellant administered a dose of Valium to a patient but failed properly to record the amount of Valium on the patient's medication chart. She had recorded that she gave medication to the patient but, by oversight, she did not record how much. On the following shift, when she realised her mistake, she recorded on the medication chart the correct dose administered. In the meantime, the omission came to Mr Ross's attention who required her to complete an incident form.
On 26 November 2004, she queried with management why she needed to complete an incident form. She asked, in effect, why she would need to complete one when six other people had also made medication omissions. When Mr Ross asked her for the names of the other staff who had made similar omissions, she refused to identify them. She explained that it was not her job or responsibility to give the names of staff members. She went on to tell Mr Ross that management were using the incident forms in a detrimental way in order to 'target' staff members. Although not required to do so, she also completed and submitted a form detailing what she perceived to be the inadequacies of the medication room. (These events concern the 'Valium incident'.)
The judge recorded that after this, she was in tears and her evidence was as follows:
I went home after a 10 hour night shift, bawling my eyes out and thinking, 'I am working in a totally unsafe work environment for me and my colleagues'. I had tried to identify the unsafe working conditions with Mr Allsop. He guaranteed me that I wouldn't be targeted. And I understand I was - I was understood that, you know, I was just trying my best for me and my colleagues who were suffering - and cause - it had stress and everything from the work environment. That it wasn't going to get better under their management and I felt I couldn't work there anymore; I did not feel safe. I didn't know what they were going to do next. They'd done one thing after the other and it was absolute continual [74].
After the meeting on 26 November 2004, the appellant stopped work and went to see her family doctor for stress. She also was waiting on an appointment to see a psychiatrist. The appellant first saw her treating psychiatrist on 28 February 2005.
The appellant had first seen her general practitioner on 16 June 2004 complaining about stress at work. She was not prescribed any medication relating to her stress [398]. She also consulted her general practitioner in relation to stress on 27 August 2004. She was prescribed sleeping tablets at that time [398].

Findings on principal employment issues

In relation to the roster issue, the judge found that it seemed more than coincidence that her roster changed in 2004 after she had made complaints to Mr Allsop and Ms Green about workplace issues. He accepted that management may have wanted to change the pattern of the roster to ensure that gender balance and skill mix was appropriate, but he found that the appellant was not 'properly consulted by the management' about changes to her roster, and he was satisfied that the appellant 'was unfairly treated' by the management over changes to the roster. His Honour also said that if unfair roster changes breached an award, that was not something which could cause the employer to have reasonably foreseen the risk of psychiatric injury to the appellant.
In relation to the enforced leave issue, the judge found that the appellant was required by management to take enforced leave for longer than was necessary. He was not satisfied that this was done for any other reason than to clear the appellant's accrued leave backlog. He was not satisfied that the miscalculation in the amount of enforced leave was anything other than a genuine mistake. He did not accept the appellant's contention that by forcing her to take leave she was being 'targeted' or that it involved bullying by the employer. His Honour accepted that whilst it may have been inconvenient for her to take seven weeks leave at short notice, in fact, the leave coincided with school holidays and the two weeks of annual leave in July that the appellant had previously applied for in any event. His Honour also accepted that when the appellant lodged a grievance over the enforced leave, the status quo required that until the grievance was resolved she should not have been forced to go on leave, but that in that regard management had made a genuine mistake because of conflicting advice. His Honour observed that 'management could have handled the leave situation … by being more consultative and sensitive', and that the threat of disciplinary action 'seemed heavy handed'. His Honour added that if the enforced leave breached an award, that was not something which could cause the employer to have reasonably foreseen the risk of psychiatric injury to the appellant.
In relation to the Maxolon incident, the judge accepted that the appellant felt stressed by the prospect of disciplinary action, but that management was justified in its approach to what had occurred and had acted properly towards her. She was clearly at fault. It was a serious concern for management that a nurse had taken from storage a drug the property of the employer and had self‑administered it whilst on duty.
In relation to the Valium incident, the judge also accepted that the appellant felt stressed over the incident, but that management was justified in its approach and had acted properly towards her.
In relation to the work environment issue, his Honour accepted that the appellant felt concerned over workplace issues between management and other staff, but many of the issues had nothing to do with her. When she involved herself in certain incidents, including an allegation of sexual assault upon a patient by a staff member, the management was justified in its approach to what had occurred and acted properly towards her. The management was properly inquiring into very serious matters which had nothing to do with the appellant.

The judge's findings concerning foreseeability of psychiatric injury

The judge said that the main focus of the trial was on the question of foreseeability [365].
By way of general background to the findings on foreseeability, the judge made the following findings [366] ‑ [372] with respect to the context in which the appellant claimed she was dealt with by management. He accepted that:
(a)there was unhappiness in the workplace in 2004 whilst changes were being implemented to bring the clinic's practices into line with modern clinical practice;
(b)there were complaints of bullying and harassment, there were industrial relations issues and disciplinary issues, and there was behaviour by members of management towards members of staff that could be characterised as bullying and harassment or, at the very least, heavy handed;
(c)there was pressure and stress in the workplace and nursing was a very difficult job and emotionally draining;
He also accepted that the appellant had issues with management over the roster changes, enforced leave, the Maxolon incident, the Valium incident and the work environment. She had made many complaints to management and felt she was being treated harshly and unfairly and perceived that she was being targeted. She filed grievances.
Nevertheless, his Honour found that:
(a)there was no evidence that any of the appellant's work colleagues demonstrated signs or symptoms of illness to management or that they were suffering harmful levels of stress;
(b)there was no evidence of an abnormal level of sickness or absenteeism amongst work colleagues;
(c)there was no evidence from the management officers that they observed signs or symptoms that any of the appellant's work colleagues were suffering ill health or harmful levels of stress.
His Honour noted that the appellant's case was to the effect that there were three occasions during the period mid‑May 2004 to 26 November 2004 in which the appellant 'demonstrated signs or symptoms to management that she was suffering ill health or harmful levels of stress' [389] (emphasis added). They were:
(a)the meeting with Ms Zandvliet on 28 June 2004;
(b)the appellant's letter to Mr Ross dated 7 September 2004;
(c)the occasion when, following the Valium incident, she went into work 'extremely distressed, upset and very tearful', following which she had a meeting with Mr Ross.
As to the first occasion, the meeting on 28 June 2004, the judge found:
The plaintiff submitted that Ms O'Donovan's statement that her health was being affected and she felt 'very, very, stressed' was notice to management that she was suffering ill-health or harmful levels of stress. On the face of it, Ms O'Donovan's statement was nebulous. It was said on the day prior to her taking seven weeks leave. She then returned to work on or about 26 August 2004 and continued working until 26 November 2004 during which time there was no evidence that she told anyone in management that she was stressed. There was no further explanation by her of the state of her health. There was no doctor's certificate explaining her illness. There was no request by her to take sick leave. She was not demonstrating to the management officers or her work colleagues, many of whom were qualified in dealing with persons suffering mental health issues, any signs or symptoms of illness or stress such as distress, tears, emotion, fatigue, lethargy, no energy, lack of concentration, agitation, anxiety, dishevelled appearance. There had been no indication that she was not coping with her work. There had been no indication in her correspondence with management at that stage that her health was affected. At the time she was engaged in what could be characterised by the management as an industrial relations dispute. Her statement about her health and level of stress to Ms Zandvliet did not suggest danger to her psychiatric health. She had been directed to take seven weeks holiday – part of which coincided with school holidays and the July annual leave she had previously applied for. At that time there was no reason for the management to suspect risk to her psychiatric health [391].
As to the second occasion, the letter of 7 September 2004, the judge found:
The plaintiff submitted that Ms O'Donovan's expression of concern that she was being intimidated was express notice to management that she was suffering ill-health or harmful levels of stress. Alternatively, the plaintiff contended that '[a]t the very least, it was by implication notification of the possibility of risk to health'. I do not agree. Nothing in her letter was capable of being interpreted, expressly or impliedly, that she was suffering ill-health or harmful levels of stress [393].
As to the third occasion, the judge found:
The plaintiff submitted that from the evidence that Ms O'Donovan went into work, 'extremely distressed, upset and very tearful' it was reasonable to infer that she presented that way to Mr Ross in their meeting. I do not agree. Nor do I accept the plaintiff's contention that '[a] finding of fact that [Ms O'Donovan] recovered her composure between arriving at the workplace and seeing Mr Ross, is not reasonably open on the evidence'.
There was no evidence of the time interval between her arrival at work and the meeting. There was no evidence that prior to the day she ceased work Ms O'Donovan had been seen at work in a distressed or tearful state on any occasion by her work colleagues or the management officers. The evidence of Dr Kay that it was possible for people who were depressed to 'pull themselves together' to go to work together with the evidence about Ms O'Donovan's presentation at work to her work colleagues and the management officers left me with the strong impression that Ms O'Donovan put on a brave face at work [395] ‑ [396].
More generally, the judge found:
I am not satisfied that a reasonable person in the position of the defendant would have foreseen that Ms O'Donovan's treatment by management over her complaints about the changes to the work roster, enforced leave, the Maxolon medication incident, the Valium dosage omission incident and the work environment may cause her psychiatric injury. The defendant could not reasonably have foreseen that Ms O'Donovan was exposed to a risk of psychiatric injury as a consequence of her being unfairly treated over changes to the work roster, being mistakenly directed to take more holidays than necessary, being properly disciplined in the form of a warning over the Maxolon medication incident, being properly required to complete an incident report form over the Valium dosage omission incident and her complaints about the work environment. There was no material available to the defendant that should have alerted it to a specific risk of psychological or psychiatric injury to Ms O'Donovan (Koehler [v Cerebos (Australia) Ltd (2005) 222 CLR 44] [17]). I am satisfied that there were no signs, express or implied, of the possibility of psychiatric injury.
Ms O'Donovan was coping with her duties. There was no reason for the defendant to suspect that Ms O'Donovan was at risk of psychiatric injury. It was far-fetched and not foreseeable that Ms O'Donovan would suffer a psychiatric injury by reason of her being unfairly treated over changes to the work roster, being mistakenly directed to take more holidays than necessary, being properly disciplined in the form of a warning over the Maxolon medication incident, being properly required to complete an incident report form over the Valium dosage omission incident and her complaints about the work environment.
I am not satisfied that the defendant ought reasonably to have foreseen that Ms O'Donovan was at risk of psychiatric injury by reason of her treatment by management over her complaints about the changes to the work roster, enforced leave, the Maxolon medication incident, the Valium dosage omission incident and the work environment. There was nothing to suggest the defendant ought to have known that Ms O'Donovan was at risk of suffering a psychiatric injury. The claim in negligence must be dismissed [399] ‑ [401].

Grounds of appeal and the appellant's arguments

Grounds of appeal

By her grounds of appeal, the appellant alleged, in effect, that:
(1)(a) the judge erred in law in determining the issue of reasonable foreseeability, by finding that it was a requirement that the employer have express or implied notice that the appellant was at risk of suffering psychiatric injury, whereas the test was whether in all the circumstances there was a reasonably foreseeable risk of psychiatric injury to the appellant; alternatively
(b)the judge erred in law in finding that the appellant had not established that there was a reasonably foreseeable risk of psychiatric injury having regard to the judge's findings to the effect that the appellant had informed the employer on a number of occasions that she felt stressed, targeted, intimidated and unfairly treated by the actions of the employer in relation to the workplace.
(2)The judge erred in law by misdirecting himself that it was necessary for the employer to have actual notice or knowledge of a risk of psychiatric injury, when the proper test was whether there was a reasonably foreseeable risk of psychiatric injury.
(3)The judge erred in law by finding that the appellant had not established a reasonably foreseeable risk of injury, having found that the appellant was unfairly treated in relation to the changes to her roster in May and August/September 2004.
(4)The judge erred in law by finding that the employer's action in June 2004 to force the appellant to take leave against her wishes did not create a foreseeable risk of psychiatric injury and by not finding that such actions were in breach of its duty to provide a safe system of work.
(5)The judge erred in law in finding that the appellant had not established a reasonably foreseeable risk of psychiatric injury and that the employer had failed to take reasonable care to eliminate the risk of injury:
(a)having found that the employer had:
(i)unfairly changed the work rosters in May/June 2004 and August/September 2004;
(ii)directed the appellant to take seven weeks continuous leave in June 2004 without authority; and
(iii)acted in a heavy handed manner by threatening disciplinary action if she attended the workplace on 29 June 2004; and
(b)where the judge ought to have found that the employer had, without authority, threatened disciplinary action if she attended the workplace on 29 June 2004.

The appellant's arguments

In relation to ground 1, the appellant did not seek to address grounds 1(a) and 1(b) distinctly or separately. In substance, the appellant's arguments with respect to grounds 1(a) and 1(b) involved the following contentions:
(a)the judge did not apply an objective test in determining the issue of reasonable foreseeability, insofar as he considered the question of whether individual members of management had express or implied notice of facts which would make them subjectively aware of the risk of psychiatric injury to the appellant;
(b)it was not open to his Honour to find at [397] that there was no occasion prior to 26 November 2004 when there was an indication to management of any particular problem or vulnerability of the appellant to psychiatric injury given the judge's findings to the effect that:
(i)the appellant was unfairly treated in relation to changes to her work roster;
(ii)she was sent off on enforced leave in a heavy handed manner;
(iii)she had made complaints about her work environment; and
(iv)she had informed Ms Zandvliet on 28 June 2004 that behaviour of management towards her was affecting her health and that she was very, very stressed; and
(c)the judge erred by finding that the appellant's ability to perform her work duties was itself determinative of the question of reasonable foreseeability of psychiatric injury; and
(d)the judge failed to distinguish the facts of this case from the facts in Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44.
As to ground 2, the appellant again contended that the judge did not apply an objective test in determining the issue of reasonable foreseeability of psychiatric injury. In relation to this ground, the appellant alleged, in particular, that:
(a)the judge could place no weight, or at least no real weight, on the fact that other employees called by the appellant did not observe the appellant exhibiting any signs of stress or inability to perform her work duties;
(b)his Honour erred in treating as 'nebulous' the appellant's evidence to the effect that she told Ms Zandvliet on 28 June 2004 that her health was being affected by the behaviour of management towards her, and that she was very, very stressed;
(c)the appellant's letter of 7 September 2004 at least raised the possibility of risk to the appellant's mental health; and
(d)the appellant's statement to Ms Zandvliet on 28 June 2004 was itself sufficient to establish a foreseeable risk of psychiatric injury, and this was reinforced by her letter of 7 September 2004.
As to ground 3, the appellant alleged that the judge should have found that changes to her work roster 'were part' of a 'deliberate campaign' brought against her by members of management which gave rise to a foreseeable risk of psychiatric injury given that:
(a)the appellant felt vulnerable and was concerned that she would be targeted;
(b)she had a commitment to her friend with cancer on Thursdays;
(c)she was a single mother with two children; and
(d)it was important for her to have regular sleep patterns as she was working nightshifts.
In relation to ground 4, the appellant's principal submission was to the effect that in addition to finding that the threat of disciplinary action was heavy‑handed, the judge ought also to have found that the miscalculation of the amount of leave that she was required to take was not a genuine mistake, but was a deliberate decision to force the appellant off work irrespective of the lawfulness of the directive. The appellant submitted that the judge ought thereby to have found that the employer had committed a tort of intentional infliction of psychiatric injury on the appellant, and that an intentional tort is not confined by a test of foreseeability and does not involve an inquiry into reasonableness of response. Reference was made to Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 [66] ‑ [83].
In relation to ground 5, it was alleged that it was not open to the judge to find that there was no reasonably foreseeable risk of psychiatric injury given the composite effect of the following alleged findings or matters:
(a)the appellant was unfairly treated over the changing of the work rosters;
(b)the direction to take leave between 29 June 2004 and 21 August 2004 without authority;
(c)the heavy handed manner of threatening disciplinary action if the appellant attended for work on 29 June 2004;
(d)the fact that the judge ought to have found that the threat of disciplinary action was taken without authority; and
(e)the findings as to what was said at the meeting with Ms Zandvliet on 28 June 2004.
In support of these submissions the appellant relied upon observations by Black CJ in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 and the cases of Wolters v University of the Sunshine Coast [2013] QCA 228 and Swan v Monash Law Book Co‑operative (t/as Legibook) [2013] VSC 326.

Disposition

The fundamental issue in the appeal was whether the judge erred in law in finding, for the purposes of breach of the general law duty of care, that the appellant had not established that the risk of psychiatric injury to her was reasonably foreseeable. The appellant did not expressly challenge the judge's findings of remoteness in relation to the breach of contract claims and it was not suggested that the scope of the inquiry would be any different on the question of remoteness in relation to breach of contract.
It should also be noted here that the judge found that even if there were a reasonably foreseeable risk of psychiatric duty, the employer took steps to minimise or eliminate the risk which were a reasonable response to the risk [413]. If the appellant was also challenging the judge's findings on the issue of reasonable response, it was not made plain in the grounds of appeal or in argument.
Nevertheless, the appeal can, in any event, be disposed of on the issue of reasonable foreseeability.

Ground 1

Questions of breach of duty require examination of the foreseeability of the risk of injury, and the reasonable response to that risk in the manner described in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 ‑ 48; Koehler [19].
In Wyong Shire Council v Shirt, Mason J said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position (47 ‑ 48).
The judge in this matter cited the above passage from Wyong Shire Council v Shirt [340]. He also cited (at [344]), inter alia, the following passages from Koehler:
In Tame v New South Wales, the Court held that 'normal fortitude' was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.
It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.
Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.
…
The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court's conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant's psychiatric health [33] ‑ [36], [41]. (emphasis added) (footnotes omitted)
The case of Hatton referred to in the extract from Koehler above is Sutherland v Hatton [2002] 2 All ER 1. In Koehler, the plurality said:
No doubt, as was pointed out in Hatton, there will be a number of factors which are likely to be relevant to answering the particular question [of reasonable foreseeability] identified in that case. Those factors would include both the nature and extent of the work being done by the employee, and the signs from the employee concerned – whether in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic [24]. (footnotes omitted)
Whilst endorsing these observations in Hatton, the High Court in Koehler at [23] ‑ [24] nevertheless rejected the proposition, said to be drawn from Hatton, that the only question which needed to be considered where an employee claimed damages from an employer for negligently inflicted psychiatric injury, was whether the kind of harm to the particular employee was reasonably foreseeable. The plurality rejected that proposition on the basis that attention must also be directed to the appropriate content of the duty in question, having regard to the relevant contractual position between the parties and the relevant statutory framework [24] ‑ [25], [38].
There is nothing to indicate that the judge in this case did not apply an objective test. The judge properly took into account whether there was any reason to suspect that the appellant was at risk of psychiatric injury. On the authority of Koehler, that inquiry was relevant to an objective determination of the issue, and no error is disclosed by his Honour undertaking that inquiry.
Reference may also be made to the observations of Spigelman CJ in Nationwide News Pty Ltd v Naidu [14] ‑ [15]:
The joint judgment in Koehler also stated (at [35]):
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable … [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.
The joint judgment made it clear that a range of factors should be considered with respect to determining the issue of reasonable foreseeability at the level of breach. (See, for example, at [24].) However, particular emphasis was given to any signs from the employee that the risk of psychiatric injury, as distinct from psychological disturbance such as stress, had appeared. In this regard the High Court observed (at [36]) that 'the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job'. (original emphasis)
It cannot be said that his Honour's finding that the appellant had not established a foreseeable risk of psychiatric injury was not open on the unchallenged (or as later discussed) unchallengeable findings of primary fact, including those referred to in [41] and [50] above. The specific matters to which the appellant refers in [55(b)] above are not inconsistent with the ultimate finding that, on the evidence as a whole, the appellant had not established that the risk of her sustaining a psychiatric injury was reasonably foreseeable. It is inappropriate to invest a particular piece or pieces of evidence with a significance which they cannot reasonably bear in their context and in the circumstances as a whole, viewed without the benefit of hindsight. A relevant question was whether what was said or done at that time conveyed any reason to suspect the possibility of future psychiatric injury (Koehler [28]). The following observations of Spigelman CJ in Nationwide News v Naidu are also relevant [20] ‑ [22]:
The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
Koehler affirms the line of High Court authority, including, Tame and Gifford, which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff.
As Gleeson CJ said in Gifford (at 276): 'reasonable foreseeability involves more than mere predictability'. In the same passage his Honour said 'advances in medical knowledge have made us aware of the variety of circumstances in which emotional disturbance can trigger, or develop into, recognisable psychiatric injury' and concluded:
… [A]dvances in the predictability of harm to others … do not necessarily result in a co‑extensive expansion of the legal obligations imposed on those whose conduct might be a cause of such harm. The limiting consideration is reasonableness, which requires that account be taken both of interests of plaintiffs and of burdens on defendants.
As to the meeting with Ms Zandvliet on 28 June 2004, the appellant's evidence - in response to a question by her counsel as to whether 'the issue' of her health had come up at that meeting - to the effect that she told Ms Zandvliet that she was very, very stressed and that the leave issue was affecting her health, was preceded by other evidence, including:
•that her principal concern was that she was being forced to take public holiday leave without consultation;
•that she was 'all for' trying to help management with the changes being made and that she was trying to help them; and
•that management would be helped by reading a booklet about consultation and family friendly initiatives.
Further, the appellant had seen her general practitioner on 16 June 2004 complaining of stress, the doctor had not prescribed any medication for it and there is no evidence to the effect that her doctor considered that she was at risk of psychiatric injury at that time. In any event, the appellant had not established that she mentioned that medical appointment to Ms Zandvliet at the meeting on 28 June 2004 [390].

Both the appellant's description of the meeting as a whole, and the terms and tenor of the appellant's correspondence with the employer over her complaints with respect to management, suggest that she was seeking to have an industrial dispute resolved in a measured and rational way, and with a view to being constructive and helpful as she saw it. They do not provide an indication of any vulnerability to psychiatric injury. Nor do the other matters raised in ground 1, which are discussed in greater detail in relation to grounds 2, 3, 4 and 5.
Further, it is incorrect to suggest that the judge treated the appellant's ability to perform her duties as being determinative in itself of the issue of foreseeability. His Honour took into account that matter as part of the overall objective inquiry, which was both permissible and appropriate. He did not treat it as, in effect, a substitute for undertaking an overall objective inquiry with due regard to all the circumstances of the case. In particular, the findings of primary fact made by his Honour at [391], referred to in [50] above, are not challenged, and the inferences drawn by his Honour in that paragraph were reasonably open. No error of law is demonstrated as alleged.
The appellant contends that Koehler was distinguishable because in that case:
(1)there were no signs that Mrs Koehler was at risk of suffering psychiatric injury;
(2)for a considerable period, Mrs Koehler and her doctors thought that she was suffering from a physical illness; and
(3)the source of Mrs Koehler's psychiatric illness was performing the duties she had agreed to perform in contract.
None of these matters points to any error by the primary judge. As to the first, Koehler is not distinguishable in that regard unless the appellant can establish that it was not open to the judge to find that there was no signs of risk of psychiatric injury to the appellant. The appellant has not established that in this appeal.
As to the second point, it involves a distinction without a material difference. In this case, in 2003, the appellant was treated for a range of health matters, including dental work and jaw joint problems, stress‑related symptoms and disturbed sleep for which she was prescribed Panadeine Forte for pain, Maxolon for nausea and vomiting, Valium for anxiety and Normison for sleep [79], [314] ‑ [315] (ts 448 ‑ 459). When she saw her general practitioner on 16 June 2004, she complained of stress, and his diagnosis was stress related to her work situation [316]. She was not prescribed any medication relating to her stress. There was no diagnosis of psychiatric injury, and it was not suggested that her general practitioner considered psychiatric injury to be in prospect or even a possibility at that time.
As to the third point, that point of difference does not signify any error by the judge. Moreover, in Koehler, the plurality said that the fact that the employee in that case had agreed to perform the duties which were the cause of her injury was of 'limited significance' [28].
Ground 1 should be dismissed.

Ground 2

Essentially, for the reasons given in relation to ground 1, ground 2 should be dismissed. The judge has applied an objective test. It was open to his Honour to consider whether the employer was on notice of the risk of psychiatric injury to the appellant by having regard, amongst other things, to whether the appellant's colleagues had observed any signs of stress or of an inability to perform her work duties.
The meeting of 28 June 2004 has been addressed under ground 1.
With respect to the appellant's letter of 7 September 2004, it appears to be a carefully composed letter which addresses her complaints methodically and in considerable detail, and gives no sign that the author is at any risk of psychiatric injury. It was written at a time when she had only relatively recently returned to work from a seven week break. Although she said that she was being 'intimidated through the roster systems', there is no mention of the appellant suffering any stress or anxiety at that time. Insofar as the appellant said that she had 'no alternative' but to 'interpret' the 'chronology of events and documentary evidence' to be the 'very type of victimisation, intimidation and bullying' that she came to discuss with Mr Ross and Mr Allsop, the appellant was conveying an inference that she had drawn. However, the significance of that allegation was to be assessed having regard to the underlying events from which the allegation was drawn and in the context of the circumstances as a whole. It was open to the judge to conclude that the letter of 7 September 2004, when viewed on its own or against the background of the meeting on 28 June 2004, did not provide by its terms or tenor a sufficient evidentiary basis upon which to conclude that there existed at that point in time a reasonably foreseeable risk of psychiatric injury to the appellant.
Insofar as the appellant alleged at trial that the letter of 7 September 2004 actually 'demonstrated signs or symptoms … that she was suffering ill‑health or harmful levels of stress' [389], the judge's finding at [393] to the contrary was correct.
Ground 2 should be dismissed.

Ground 3

Ground 3, in its terms, is based on the judge's finding that the appellant was unfairly treated with respect to roster changes. The appellant contends, in effect, that this finding on its own or in the context of the matters in (a) ‑ (d) of [57] above, meant that the judge erred in not concluding that there was a 'campaign' against her by 'members of [the employer's] management' of which the roster changes were a 'part'.
The judge's finding at [373] that it 'seemed more than coincidence' that changes had occurred after the complaints to Mr Allsop and Ms Green, suggests that his Honour considered that the complaints contributed to the timing of the decisions to change the roster. As to the reasons for the change, his Honour, in the same paragraph said, in effect, on the one hand, that it was 'quite possible' that the changes occurred because of the appellant's complaints to Mr Allsop. On the other hand, he also accepted that management 'may have wanted to change the pattern of roster to ensure that gender balance and skill mix was appropriate' [373]. No firm conclusion appears to be reached.
Insofar as his Honour found that the appellant was 'unfairly treated' over the roster changes, it appears to be on the basis that she was not properly consulted over the changes [373] ‑ [374]. In other words, his Honour appears to have concluded that the appellant was 'unfairly treated' because of a lack of consultation about the changes, rather than because of the fact that the rosters included Wednesday work.
The finding of lack of consultation is not tantamount to a finding, or in itself evidence, of a 'campaign' against the appellant. Also, the allegation of a 'campaign' is inconsistent with the judge's findings to the effect that his Honour was not satisfied that management's decision to require the appellant to take leave was done for any other reason than to clear the appellant's accrued leave backlog [380]; he did not accept the appellant's contention that the requirement to take leave was unreasonable, or that it involved bullying or targeting of the appellant [381]; and that any mistakes that the employer made in dealing with the appellant were genuine mistakes [382], [413]. The former two findings are not challenged in the grounds of appeal. The third finding is sought to be challenged in submissions in relation to ground 4, although for reasons which will emerge, the challenge is impermissible and could not, in any event, succeed.
It is also of significance in this context that there were a number of wide‑ranging allegations made by the appellant in her pleadings which might have supported an allegation of a 'campaign' against her, but upon which she did not lead any evidence at trial [359].
Nor do the matters in (a) ‑ (d) of [57] above assist the appellant on this point. The appellant's subjective feelings are not objective evidence of a 'campaign' against her. Apart from the lack of consultation involved, the appellant has not shown that the rostering of the appellant on Wednesdays involved the infringement of some entitlement that she had to insist upon working the days of her choosing. It would be surprising if individual employees had such an entitlement in the context of the employer's need to roster for the clinic as a whole. Nor do the facts that the appellant was a single mother and needed regular sleep patterns provide any evidence of a 'campaign' against her.
Ground 3 should be dismissed.

Ground 4

The submissions in support of this ground, in substance, raised three allegations.
The first is that the judge erred in fact in finding that the employer had made a genuine mistake with respect to the amount of leave the appellant was required to take. However, ground 4 does not allege an error of fact. There was no application to amend the grounds of appeal to allege an error of fact, and that is sufficient to dispose of this allegation. Further, had there been an application for leave to amend, and leave was granted, the appellant would have had to comply with practice direction 7.4, and set out all the evidence in favour of the judge's finding of fact and all the evidence against it. No attempt was made in the submissions to address all the evidence on the topic in order properly to demonstrate any error of fact.
The second allegation was to the effect that the judge should have found that Ms Green intentionally deceived Ms Zandvliet by omitting to inform her that the appellant had about 100 hours of leave in July 2004 which she had applied for, and for which she had received approval seven months earlier. However, the accusation of deceit was not put to Ms Green in cross‑examination, and there can be no basis for this court to infer deceit in the absence of Ms Green having had an opportunity to explain the omission in the court below. Moreover, the implication of the allegation is that Ms Green was involved in targeting or bullying the appellant. However, as noted earlier, the judge found that he was not satisfied that the enforced leave was done for any other reason than to clear the leave backlog [380]; he did not accept the appellant's contention that the enforced leave was unreasonable, or that it involved targeting or bullying by Ms Green [381]; and he found that the miscalculation in the amount of the enforced leave was a genuine mistake [380], [413]. These findings are not challenged by the grounds of appeal and to the extent that the finding of a genuine mistake was challenged in submissions, the challenge is unsuccessful for the reasons given in the preceding paragraph.
The third allegation is to the effect that the judge erred in not finding that the employer was liable in tort for the intentional infliction of psychiatric injury. The appellant says that she had pleaded that the employer conducted and maintained a work environment in which its management 'unfairly harassed, bullied or intimidated, disregarded or belittled the rights' of staff lower in the employment hierarchy. That generalised allegation is not equivalent to a case that the employer intentionally inflicted psychiatric injury on the appellant. It cannot be supposed that such a case, had it been run at trial, would not have involved at least some additional or different evidence. Such a case cannot now be run on appeal: Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [48] ‑ [53].
Ground 4 should be dismissed.

Ground 5

Ground 5 is said to be a 'composite' ground which largely relies upon the cumulative effect of the arguments relied on in the preceding grounds. Essentially, for the reasons given earlier, ground 5 should be dismissed.
It is convenient to recapitulate the findings which the judge made with respect to the alleged matters relied upon in ground 5. As to the matter in (a) of [59] above, the judge found that the appellant was unfairly treated by not having been properly consulted over the changes to the her roster [373] ‑ [374]. The finding of unfair treatment by lack of consultation in all the circumstances of this case does not point to error by the trial judge on the question of reasonable foreseeability of psychiatric injury.
As to the matters referred to in (b), (c) and (d) of [59] above, the judge found that the appellant was required to take some period of leave beyond that which was strictly necessary (and to the that extent, it may be inferred, was done without contractual or statutory authority), that the threat of disciplinary action 'seemed heavy‑handed', and that the issue could have been addressed more consultatively and sensitively by the employer [379] ‑ [380], [382]. Nevertheless, the judge also found, in effect, that:
(i)he was not satisfied that this was done for any other reason than to clear a perceived accrued backlog of leave [380];
(ii)the miscalculation of the amount of enforced leave was a genuine mistake [380], [413];
(iii)the decision to require the appellant to take the leave notwithstanding the lodgement of a grievance, was a decision made by management by virtue of a genuine mistake because of conflicting advice [382];
(iv)he did not accept the appellant's contention that the requirement to take leave was unreasonable [381] (this finding is presumably to the effect that although the employer had mistakenly overstated the period that it was necessary for her to take leave, the initiative itself to require her to take leave in order to cover accrued leave was not an unreasonable one);
(v)he did not accept that the requirement to take leave involved bullying [381]; and
(vi)he did not accept that the enforced leave was a targeted punitive action by Ms Green against the appellant [381].
In this context, and having regard to all the unchallenged findings of primary fact, none of the adverse findings against the employer with respect to the changing of the rosters or the enforced leave points to any error by his Honour on the question of the reasonable foreseeability of psychiatric injury to the appellant.
As to the matter in (e) of [59] above, the evidence and his Honour's findings with respect to the meeting of 28 June 2004 have been considered earlier in these reasons. A consideration of the evidence and the findings with respect to that meeting does not demonstrate any error of law by his Honour.
The matters referred to in ground 5, either alone or in combination, do not signify any error of law on the part of the primary judge in finding that the appellant had not established that the risk of psychiatric injury was not reasonably foreseeable, viewed prospectively, at the relevant time. This is a case where the whole is no greater than the sum of its parts.
Finally, the cases relied upon by the appellant referred to in [60] above do not assist the appellant.
In relation to Goldman Sachs JBWere Services Pty Ltd v Nikolich, the appellant relied upon the observations of Black CJ where his Honour said:
The findings reported in the article in the Australian Financial Review of a link between workplace stress and health problems could come as no surprise to anyone with significant management experience and surely not to a human resources manager. Certainly there was no suggestion in the evidence of Ms Jowett that such a link was novel and beyond the reasonable contemplation of a human resources manager dealing with a complaint about a manager accused of 'insults and abuse' and who was said to have caused 'a considerable degree of anxiety, stress and discomfort' [49].
That passage is to be read in the context of his Honour's earlier reasons, including the following passages:
The trial judge held that the appellant was in breach … in responding effectively to complaints by Mr Nikolich about a decision by Mr Sutherland to reallocate certain clients away from him ('the reallocation decision') and Mr Sutherland's subsequent conduct towards him, which was said to include 'malicious' personal attacks, 'threatening and disturbing' actions and comments including false accusations and a 'barrage of insults and abuse' which caused Mr Nikolich 'a considerable degree of anxiety, stress and discomfort'. The complaints were made in a four‑page typed letter to Ms Jowett dated 28 July 2003. It referred to, and was accompanied by, a copy of an article in the Australian Financial Review entitled 'Bully Bosses a Health Risk for Workers' which cited a recent study that had found that stress caused by bullying in the workplace increased the chance of heart attack or stroke.
…
His Honour found that it was known to the appellant that Mr Nikolich was continuing to work in a small office managed by a person with whom he had come into serious conflict, whose actions he had found extremely intimidating and threatening and with whom he was no longer on speaking terms. These findings were amply supported and were not challenged on appeal [44], [48].
The findings of the primary judge in that case provide no analogy with this one, and the appellant's reference to the observations of Black CJ at [49] in the appeal in that case do not demonstrate any error by the primary judge in this one.
Nor do we accept that the case of Wolters v University of the Sunshine Coast provides any real analogy. That was a case where the plaintiff had been the subject of aggressive conduct by a male member of staff in circumstances where it was known to the employer that the same male member of staff had previously behaved aggressively and verbally abused another female employee leaving her with a psychiatric injury, and was capable of causing such an injury to other employees (see especially [10] and [14] of the Queensland Court of Appeal's reasons).
The other case referred to by the appellant was Swan v Monash Law Book Co‑operative. That case involved various incidents of violence and intimidatory conduct over a period from 2002 to 2007 (see especially [69] ‑ [95] of the court's reasons). It provides no basis for inferring error by the primary judge in this case.
Ground 5 should be dismissed and the appeal should be dismissed.