Pecenka v Minister for Health - [2012] WASCA 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PECENKA -v- MINISTER FOR HEALTH [2012] WASCA 250

CORAM: PULLIN JA
BUSS JA
MURPHY JA

HEARD: 5 OCTOBER 2012

DELIVERED : 5 DECEMBER 2012

FILE NO/S: CACV 123 of 2010

BETWEEN: VIKTORIA PECENKA
Appellant
AND
MINISTER FOR HEALTH
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SLEIGHT DCJ
Citation  :PECENKA -v- MINISTER FOR HEALTH [2010] WADC 163
File No  :CIV 144 of 2006

Catchwords:

Torts - Negligence - Appeal from judgment dismissing claim against employer for damages for psychiatric illness - Whether any inferences should be drawn from the failure of the respondent to call a particular person as a witness - Whether estoppel arose out of workers' compensation proceedings

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr R L Hooker

Solicitors:

Appellant: In person
Respondent: Talbot Olivier

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

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Pecenka v Minister for Health [2010] WADC 163

PULLIN JA: The appellant appeals against the judgment of Sleight DCJ, who dismissed the appellant's claim for damages in relation to psychiatric illness from which the appellant suffered twice in the course of her employment with the respondent. The appellant also claimed damages for physical injury which she suffered in the course of her employment. That claim was upheld, and that aspect of the judgment is not under review. The appeal should be dismissed for the following reasons.
The trial judge's reasons set out in detail the relevant history in relation to the claims: see Pecenka v Minister for Health [2010] WADC 163. The following is a summary of the history, according to the evidence and the trial judge's findings.
The appellant commenced employment in April 1990 as a supervisor in the infant formula room at the Princess Margaret Hospital for Children (PMH). The hospital was run by the respondent. Staff of the infant formula room were responsible for preparing formula milk bottles for babies who were patients. The infant formula room was part of the Nutrition and Dietetics Department of PMH and the appellant, as supervisor, was answerable to a senior dietician within the department. When she commenced her employment, this position was occupied by Ms Martino. In 1998, Ms Martino became the acting head of the department and from that time forward, the senior dietician responsible for the infant formula room was Ms Hall.
Situated in the infant formula room was a pasteuriser machine. The appellant claimed that as a result of the cumulative effect of the opening and closing of the heavy lid of the machine over a period of time, and as a result of the lid falling twice on her right arm, her right arm and shoulder were injured. This was the physical injury for which the appellant was awarded damages.
The appellant claimed that the first psychiatric injury arose as a result of a number of incidents where the appellant alleged another employee in the infant formula room, a Mrs Petrowsky, behaved in an insulting, provocative or aggressive manner towards her. The appellant complained that the respondent was negligent and in breach of its duty of care in failing to satisfactorily address the complaints made by the appellant and other employees concerning Mrs Petrowsky's behaviour. The appellant claimed that she suffered a psychiatric injury as a result of this breach of duty of care. It is not in dispute that such an injury was suffered. The trial judge found that it was an adjustment disorder, accompanied by a low grade panic disorder [402]. The appellant suffered this illness at least by 18 September 2000, but recovered from this psychiatric illness, at least by 4 October 2000.
The second psychiatric illness was found by the trial judge to be a 'resurrection' of the earlier illness. She suffered this illness on or about 19 October 2000. In relation to this second bout of the illness, the appellant alleged that this was caused by the respondent breaching its duty of care by:
(a)failing to properly investigate certain allegations made against the appellant (to be detailed below);
(b)notifying the appellant's doctor, Dr Webster, of the allegations against the appellant;
(c)suspending the appellant; and
(d)repeating the allegations against the appellant at WorkCover hearings [436] ‑ [441].
The background is that in 1994, PMH amalgamated with King Edward Memorial Hospital for Women. This was a stressful time for staff. As a result of this, the appellant had 10 days off work on stress leave. The appellant and other employees were provided with counselling.
In August 1998, PMH employed Mrs Petrowsky. She was employed as a part‑time assistant in the infant formula room and because she was part‑time, she was only required to work a couple of days a week [70]. Because of this, and because of the structure of the rosters, Mrs Petrowsky was only rostered to work with the appellant about three to four times a month [70]. Almost immediately there were tensions between the appellant and Mrs Petrowsky. It is unnecessary to relate the details of the tensions between them, but they boiled down to arguments, not all of them relating to work. The title to some of the headings in the trial judge's reasons for decision indicate the nature of some of the disputes. They included the 'Bill Clinton argument' and the 'lipstick and voodoo doll incidents'. There were also arguments relating to the work to be carried out, including the 'expressed breast milk incident'.
PMH had a system of conducting performance appraisals by supervisors of subordinate staff. They were held on a regular basis, usually annually [103]. The performance appraisals on the appellant were positive, although Ms Martino said she had always had concerns about the appellant's supervisory style [103]. In July 2000, Ms Hall had a meeting with the appellant. The appellant was angry and wanted Ms Hall to retract her comments on an appraisal form criticising the appellant's supervisory skills. In view of the tensions between the appellant and Mrs Petrowsky, the acting coordinator of the Human Resources Department recommended that the appellant complete incident report forms if she wanted to pursue allegations against Mrs Petrowsky [110]. As a result, the appellant completed four such forms on 31 July 2000 and lodged them with Ms Martino's office. These incident report forms were investigated by PMH's Department of Occupational Health and Safety or the Department of Human Resources [112].
The four forms lodged by the appellant related to four separate incidents, being the 'Bill Clinton argument' in November 1999; the 'King Edward Memorial Hospital newspaper article incident in May 2000'; an incident in April 2000 which related to an occasion when it was alleged that Mrs Petrowsky called another employee, Mrs Easthope, a liar; and the 'expressed breast milk incident' on 14 July 2000.
At the time these forms were lodged, the appellant made no sick leave claim arising from any of these incidents. Further, none of the forms made any reference to the appellant suffering any health issues as a result of the conflict [115]. Mrs Easthope also lodged incident report forms complaining about Mrs Petrowsky [118].
The forms were lodged when Ms Martino was on leave. When Ms Martino saw the forms upon her return, she was not certain whether the forms suggested something seriously wrong or whether they should just be noted. She was advised by another officer that the matters had to be investigated and a process followed [120].
The appellant went on leave on 14 August 2000 to 28 August 2000. During this period the appellant consulted a doctor, Dr Webster. Dr Webster said that the appellant complained to him about problems with workplace aggression and stress and mentioned that there were problems with one particular member of her team. She complained that she was experiencing poor sleep and feeling anxious. While on leave, the appellant sought counselling and also went to her union.
On 28 August 2000, which was the appellant's first day back from leave, Ms Martino had a meeting with the appellant. Ms Martino also met with Mrs Petrowsky. Each were asked to write down the things they expected of each other. Each of the two women attacked the other in their written comments. For example, in her document, the appellant said of Mrs Petrowsky that she should 'stop to consider yourself as the centre of the universe', 'pay respect to other people's opinions and diversities', 'think 10 times before you say something', and that 'some of [her] comments turn to be verbal threats, mental blackmail and false accusations'. Mrs Petrowsky in her document complained about the appellant 'ganging up - manipulates people. Makes fun of me', 'excludes me deliberately'.
On 30 August 2000, a meeting was held between the appellant, Mrs Petrowsky and Ms Martino. The appellant described the meeting as disastrous and said that Mrs Petrowsky interrupted Ms Martino and verbally attacked the appellant. Ms Martino, however, thought that the meeting went smoothly, but felt that both of the women had been inflammatory in some of their notes.
The next day Mrs Petrowsky wrote a letter to the Human Resources Department complaining of continual harassment by the appellant. In the letter she complained in general terms of intimidation of staff members, continual derision, hysterical outbursts and social slurs.
Ms Martino conducted another meeting with the two women on 31 August 2000. Ms Martino said that the meeting very quickly got out of control with both the appellant and Mrs Petrowsky engaging in heated exchanges and finger pointing. Mrs Petrowsky left the meeting to move her car and did not return.
After that meeting, the two women returned to work in the infant formula room. There was a further flare‑up. On 1 September 2000, Ms Martino contacted the appellant and asked how she was going and explained that she (Ms Martino) was going to New Zealand for two weeks on a conference. The appellant said that she should not be going away and leaving the appellant with the problem concerning Mrs Petrowsky. Ms Martino told the appellant that if she needed to pursue the matter, she should speak to Ms Hall or two other people, Mrs Brien (a human resources consultant) or Mr Wright (of the Occupational Health and Safety Department).
On 4 September 2000, the appellant lodged a further incident report. Again, there was no suggestion in that report that the matter caused any health issues for the appellant.
Mrs Brien gave evidence that she was consulted by Ms Hall on 6 September 2000 and shown the various incident report forms. Mrs Brien concluded that an attempt should be made to resolve the conflict between the women. As a result, a mediation with a facilitator was arranged and Mrs Brien and Mrs Hall held separate meetings with the appellant and Mrs Petrowsky, informing them of the mediation. Following those meetings, letters were sent by PMH to both the appellant and Mrs Petrowsky, dated 12 September 2000. Each letter contained a summary of the other person's complaints and required a response verbally or in writing by 18 September 2000.
On 12 September 2000, both the appellant and Mrs Petrowsky attended the mediation with a Mr Sinclair as mediator. Ms Hall attended and she considered that Mr Sinclair conducted the meeting in a calm and professional manner, but after the meeting both of the contending women complained to Ms Hall about Mr Sinclair.
On 18 September 2000, a meeting was held between the appellant, her union representative, Ms Martino and Mrs Brien. The appellant said she could not give a written response to Mrs Petrowsky's complaints because she needed a break. She claimed that she said she felt depressed, stressed and suicidal and told them she was going to see a doctor. However, under cross‑examination the appellant agreed that she could not recall if she told the others at the meeting that she was suicidal.
On 18 September 2000, the appellant saw Dr Webster and she took sick leave. As indicated above, other evidence revealed that she suffered the first psychiatric injury at least by this date.
While the appellant was on sick leave, Ms Martino telephoned her at home to see how she was going. The appellant told Ms Martino that she was watching the Olympics, enjoying it and feeling good.
A written response to Mrs Petrowsky's complaints was provided by the appellant as requested by her employer. This response acknowledged that in relation to the 'expressed breast milk incident' the appellant had said to Mrs Petrowsky 'shut up, you stupid bitch'. The appellant also acknowledged that in relation to the 'King Edward Memorial Hospital newspaper article incident' she had said, as a result of Mrs Petrowsky shouting, that Mrs Petrowsky should 'shut up and go back to work' [157].
On 25 September 2000, Mr Wright, of the Occupational Health and Safety Department of PMH, sent an email suggesting that the appellant's stress claim be independently investigated, that Ms Hall and Ms Martino be given the opportunity to 'put the facts' and that Mrs Brien and Mrs Petrowsky be interviewed. The email continued:
Importantly, I suspect that pre‑existing psychiatric condition(s) may be present. I make this comment based upon her previous claim for work‑related stress ... Interestingly, Viktoria's pre‑employment medical history form from 1990 shows that she declared a mental disorder. However, in the investigation report undertaken by Carpenter Lawrence & Associate ... Viktoria notes that she has not had any mental illness.
On 26 September 2000, Mr Wright telephoned Dr Webster. According to Dr Webster, Mr Wright advised him there was a problem at the workplace between the appellant and another and that the appellant wanted the other person sacked [160].
A meeting was held on 28 September 2000. This was attended by the appellant's union representative, Ms Martino, Ms Hall and Mrs Brien. At the meeting the allegations of the appellant and the counter‑allegations of Mrs Petrowsky were discussed. Mrs Brien and Ms Martino said that it was decided that the appellant needed some training in communication skills. As a result, a letter was addressed to the appellant dated 4 October 2000. It stated that 'as a means of helping you' certain actions would be taken by the department, including further training, clarification of the appellant's role, referring the appellant to counselling and rescheduling the roster for the appellant and Mrs Petrowsky. A similar letter was sent to Mrs Petrowsky advising that she would receive clarification of her role and that there would be a rescheduling of the roster. The letter also directed Mrs Petrowsky not to participate in any 'yelling matches' with the appellant.
The appellant returned to work on 4 October 2000 and the trial judge found that by this time the appellant had recovered from the first bout of psychiatric illness [421].
On 5 October 2000, the appellant said that while she was using the pasteurising machine at work, the lid of the pasteuriser fell heavily twice on her right arm and she experienced pain, but there was no blood or bruising. The appellant attended a meeting with Mrs Brien and Ms Martino that day, and according to the evidence of Mrs Brien there was no mention made of the arm injury. Ms Martino tested the pasteuriser and it seemed 'fine to her' [173]. The appellant was off work until 9 October 2000. She returned to work and was interviewed by a WorkCover investigator in relation to the claim by the appellant for stress leave.
There was other evidence provided to the department by a Ms Benjamin and a Ms Htun which led Ms Martino to consider that the appellant had deliberately damaged the pasteuriser and deliberately injured herself. This was based upon Ms Martino's examination of the pasteuriser and the statements made by Ms Benjamin and Ms Htun.
On 18 October 2000, Ms Martino and Mr Wright visited Dr Webster. This visit was authorised by an authorisation given by the appellant in her claim for compensation form. Dr Webster was informed of the allegation that the appellant had deliberately damaged the pasteuriser and had deliberately injured herself.
On the next day, 19 October 2000, the appellant had an appointment with Dr Webster and he informed her of the meeting with Ms Martino and Mr Wright. Dr Webster informed the appellant that he had been told of the allegations that the appellant had deliberately damaged the pasteuriser and her arm. The appellant said she was shocked by this information. Dr Webster issued a medical certificate which certified that the appellant was fit to return to work from 19 October, as long as she was not rostered to work with Mrs Petrowsky.
The trial judge found that there was a resurrection of the earlier psychiatric illness as from or about 19 October 2000 [422].
The view of management was that the allegations made by Ms Benjamin and Ms Htun were serious and as a result, on 20 October 2000, a decision was made to suspend the appellant on full pay until 24 October 2000. As a result she was escorted by security guards to her room to collect her belongings and then escorted from the premises. She said she went into shock as a result.
A letter was sent to the appellant dated 20 October, confirming the suspension and requiring her to attend a meeting on 24 October 2000 [202]. On 28 October 2000, the department decided they would give the appellant a written formal warning and remove her from her supervisory role for one month. The department did not consider dismissal as a viable option as they did not have available a report on the outcome of an investigation which had been ordered.
On 30 October 2000, the appellant was advised of the decision to give her an official warning and to remove her from the supervisory role for one month. There was no finding made that the appellant had deliberately broken the pasteuriser or deliberately injured herself.
On 31 October 2000, the appellant presented a written request for long service leave. She was granted long service leave and she left for such leave on 1 November 2000. This was the last day that she worked at PMH [212].

The trial judge's conclusions

The trial judge correctly directed himself as to the law concerning the duty of care to prevent psychiatric injury: see [45] ‑ [51]. This included a consideration of the case of Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44. In relation to the 18 September 2000 psychiatric illness, the trial judge found that it was not foreseeable that the appellant would suffer a psychiatric injury as at 18 September 2000 [416]. The trial judge's reasons for this conclusion read:
In my view it was not reasonably foreseeable to the defendant that Ms Pecenka would suffer a psychiatric injury as at 18 September 2000. I reach this conclusion for the following reasons:
(i)Prior to 18 September 2000 Ms Pecenka had not taken any stress leave relating to a conflict with Mrs Petrowsky.
(ii)I do not attach any significance to Ms Pecenka stating in her medical history form at the commencement of her employment that she had previously suffered a mental disorder. At the same time her doctor had issued a certificate saying that Ms Pecenka was fit to perform the tasks of her employment. In any event the notation on Ms Pecenka's medical history form related to stress she claimed she suffered as a result of being unemployed for a period of time. There is no evidence that she suffered any diagnosed mental condition or received any treatment.
(iii)Likewise, I do not believe that the stress leave taken in 1994 is significant and ought to have alerted the defendant to Ms Pecenka's vulnerability to suffering a psychiatric injury. I accept the evidence of Ms Martino that Ms Pecenka took stress leave at a time when a lot of other employees at the PMH were experiencing stress due to major changes in the structure of management arising out of an amalgamation with the King Edward Memorial Hospital.
(iv)I do not accept that Ms Martino was alerted to Ms Pecenka's vulnerability of suffering a psychiatric illness in what has been described earlier in this decision as a conversation relating to potassium chloride. I conclude that some query was made by Ms Pecenka about potassium chloride but it was not a genuine inquiry. I conclude it was a flippant remark made by Ms Pecenka to which Ms Martino attached no significance and understandably cannot now recall the comment.
(v)I find that from time to time Ms Pecenka made adverse comments or complaints about Mrs Petrowsky to Ms Hall and Ms Martino prior to the performance appraisal in April 2000, but these were isolated and given the lack of frequent contact between Ms Pecenka and Mrs Petrowsky, neither Ms Martino or Ms Hall attached any significance to the comments and do not recall such comments being made. I find that whatever complaints were made were not sufficient to alert Ms Martino or Ms Hall that there was such a significant problem in the Infant Formula Room so that it was reasonably foreseeable that Ms Pecenka might suffer a psychiatric injury if PMH did not resolve the conflict.
(vi)I accept the evidence of Ms Hall that in a performance appraisal conducted in March 1999 Ms Pecenka did not raise any complaint about Mrs Petrowsky or indicated that there was an ongoing conflict [416].

In addition, the trial judge found that the respondent was not in breach of its duty of care to the appellant in relation to the claim for the psychiatric injury of 18 September 2000. He did so for the following reasons:
(i)I reject the pleaded claim of negligence against the hospital based upon an allegation that Mrs Petrowsky should not have been permanently employed in the Infant Formula Room (pars 23A(i) and 23A(ii) of the statement of claim). There was no evidence presented that Mrs Petrowsky was disliked by her fellow co‑workers at her previous place of employment (King Edward Memorial Hospital). Further, there is no evidence that PMH departed from acceptable procedures at the time Mrs Petrowsky was employed to support a contention that she should not have been employed.
(ii)Further, I reject the pleaded claim of negligence that the hospital did not have in place an appropriate and effective protocol for addressing inappropriate and unacceptable behaviour in the workplace (par 24A(ix) of the statement of claim). The hospital engaged a private counselling service (Wood Styles) which provided individual employees with independent and confidential counselling for conflict in the workplace. Further, there were regular staff meetings and performance appraisals where such issues could be raised. If an employee felt that an incident occurred which was of particular significance then the employee could file an Incident Report Form which would lead to an investigation by management. The hospital also had structures in place such as a department of Occupational Health, Safety and Welfare and a department of Human Resources to deal with such conflicts in the workplace. In my opinion such arrangements were appropriate and reasonable in the circumstances.
(iii)Further, I reject the pleaded claim of negligence that the hospital failed to adequately and in a timely fashion address the conflict between Ms Pecenka and Mrs Petrowsky (pars 24A(iii), 24A(iv), 24A(v), 24A(vi), 24A(x) and 24A(xi) of the statement of claim). I am satisfied that the response of the hospital to the conflict between Ms Pecenka and Mrs Petrowsky was reasonable, timely and appropriate in the circumstances. Given the personalities of the two employees Ms Pecenka and Mrs Petrowsky, and the nature of their cross-allegations, I am satisfied that it was reasonable, and, in fact correct, that management treated the issue as a personality clash. In dealing with this issue the hospital had to take into account both its contractual and industrial obligations to both employees and also its paramount concern to ensure that the Infant Formula Room remained functional (see the discussion of the legal principles earlier in this decision).
I find that the problem of the conflict between Ms Pecenka and Mrs Petrowsky only became significant when Ms Pecenka reacted adversely to the criticism of her at the performance appraisal on 28 July 2000. At this time Ms Hall made an immediate recommendation to Ms Pecenka that she undertake counselling on how to deal with conflict. Further, the hospital instructed Ms Pecenka to fill in Incident Report Forms if she wished to pursue any allegations against Mrs Petrowsky. Both of these steps by the hospital were appropriate.
I do not accept the allegation that the time frame in which the Incident Report Forms and the conflict were dealt with was unreasonable. This is despite the fact that the Incident Report Forms were dealt with outside the time limits set in the provisions of the industrial Award concerning grievances. In my opinion, it was not unreasonable of Ms Hall to initially take the view that the Incident Report Forms did not require urgent priority. One of the incidents, the Bill Clinton/Lewinsky conversation incident, had occurred over six months earlier without any complaint being made at or about the time of the incident. As I have earlier indicated in this decision, in my opinion all of the incidents were of a relatively petty nature. At the time the Incident Report Forms were lodged, the head of the Nutrition and Dietetics department, Ms Martino, was on annual leave and Ms Pecenka and Ms Hall were also about to go on annual leave. In light of the fact that Ms Pecenka and Mrs Petrowsky only worked together approximately three to four times per month, I conclude it was reasonable for the investigation of the Incident Report Forms to be postponed until the relevant parties had returned from annual leave. This is particularly so as there was no claim by Ms Pecenka in the Incident Report Forms that the conflict was causing her health problems, no sick leave had been taken at that time relating to the issue and, in my opinion, there was nothing at the time which might have reasonably alerted the hospital to a foreseeable risk of psychiatric injury.
It is also significant that in the interim Ms Pecenka did have available to her the confidential counselling service of Wood Styles, which she utilised in August 2000 when she was on leave.
Once Ms Pecenka returned from leave I find that her complaints were appropriately and reasonably dealt with. The day Ms Pecenka returned from annual leave, 28 August 2000, Ms Martino arranged a meeting with Ms Pecenka. On discussing the matter with Ms Pecenka, Ms Martino concluded that she would obtain from both employees, Ms Pecenka and Mrs Petrowsky, a written summary of their complaints against each other. In my opinion these written documents, which I have referred to earlier in this decision, confirm the correctness of the conclusion of management that the conflict was due to a personality clash between the two employees.
I find that the meeting arranged by Ms Martino between Ms Pecenka and Mrs Petrowsky to try and resolve the conflict was a reasonable and appropriate response in the circumstances. Unfortunately, this meeting was not successful. Ms Martino, who was committed to attend a conference in New Zealand, then passed the investigation of the Incident Report Forms onto Mrs Brien of the Human Resources department. Ms Pecenka was critical of Ms Martino attending the conference in New Zealand but I do not accept this is a valid criticism.
Mrs Brien was instructed in the matter on 6 September 2000 and she almost immediately arranged a compulsory conflict resolution counselling session at Wood Styles before a Mr Sinclair on 18 September 2000. Unfortunately this further attempt to resolve the conflict failed. A further meeting was then held with Ms Pecenka and her representative on 18 September 2000 in which it was agreed that Ms Pecenka be given further time to file written responses to the complaints made against her. Ms Pecenka lodged her written responses with the hospital on 25 September 2000. A decision was then made in response to the Incident Report Forms on 28 September 2000. In my opinion the procedures followed by management of the hospital were appropriate and conducted in a reasonable time frame considering the circumstances.
(iv)Further, I reject the claim of negligence that the defendant failed to provide Ms Pecenka with training or adequate training to respond to aggression in the workplace (par 24A(xii) of the statement of claim). There are two problems with this claim. Firstly, I do not accept that the problem that created the psychiatric illness of 18 September 2000 was due to Ms Pecenka being unable to adequately respond to aggression in the workplace. In my opinion the cause of the psychiatric illness was related to the criticisms made of Ms Pecenka which were initially raised in the performance appraisal on 28 July 2000. Secondly, the complaint by Ms Pecenka that she had not been given any training on how to respond to aggression was not supported by any evidence as to what was the nature of such training and if so whether it would have enabled Ms Pecenka to resolve the stresses which she said were the causes of her psychiatric illness. In any event, in my opinion it is unlikely that further training of any sort would have resolved the matter as indicated by the unsuccessful attempts with counselling and the need of Ms Pecenka to be vindicated in relation to the criticism of management concerning her supervisory style.
(v)Further, I reject the claim of negligence that the defendant was negligent in that it failed to recognise that Ms Pecenka was at greater than usual risk of developing a psychiatric injury or stress related disability if her complaints about Mrs Petrowsky were not adequately addressed or adequately managed (par 24A(v) of the statement of claim). I do not accept that the hospital ought to have been alerted to Ms Pecenka's vulnerability based upon her visible emotional stress when complaining about Mrs Petrowsky and the frequency of her complaints. As stated earlier Ms Pecenka is an emotional person. I concluded that it is likely Ms Pecenka did on at least one occasion after the Clinton/Lewinsky argument say to Ms Martino something like 'it is killing me' when complaining to Ms Martino about Mrs Petrowsky. However, such a comment has to be put in the context that Ms Pecenka had a propensity to exaggerate things. In any event to say something like 'it is killing me' is the type of figurative speech which is not generally taken seriously.
I also find that Ms Pecenka did indicate to Ms Martino that she was intending to seek counselling in her holidays in August 2000. This is consistent with the fact that it was recommended at the performance appraisal that Ms Pecenka seek counselling. However, in my opinion, this does not make it reasonably foreseeable Ms Pecenka was likely to suffer a psychiatric injury if the hospital did not deal adequately with her complaints about Mrs Petrowsky.
For reasons I have given earlier I also reject the defendant ought to have recognised Ms Pecenka's vulnerability by the frequency of her complaints concerning Mrs Petrowsky, the enquiry made concerning potassium chloride and the earlier history of stress.
(vi)Further I reject the claim of negligence that the defendant ought not to have exposed Ms Pecenka to the meetings on 30 August 2000 and 12 September 2000 and ought to have given her more time to respond to the complaints against her by Mrs Petrowsky (pars 24A(vii) and 24A(viii) of the statement of claim). The meetings were reasonably called as a part of the process to resolve the conflict. Further, I find that Ms Pecenka had adequate time to respond to the complaints [417].
Finally, the trial judge found that in any event he did not accept that, even if the grounds of negligence had been established, they caused the appellant psychiatric illness. The reason for this was that her illness stemmed from, and was caused by, a matter not pleaded as amounting to a breach of duty. His Honour explained that finding as follows:
In my view the cause of the psychiatric illness was the criticism of Ms Pecenka, raised initially at the performance appraisal on 28 July 2000 by Ms Hall, and the failure of Ms Pecenka to persuade her employer to remove the criticism. This, of course, was indirectly related to the conflict with Mrs Petrowsky but until the criticism was made I am satisfied that the conflict Ms Pecenka was having with Mrs Petrowsky was not causal of any psychiatric injury. This is understandable because regardless of how unpleasant the conflict might have been, Ms Pecenka and Mrs Petrowsky worked together so rarely and the nature of the conflict was of such a petty nature that it was unlikely that the conflict would create a major issue. This is confirmed by Ms Pecenka and Mrs Petrowsky working together from the time Mrs Petrowsky commenced employment in August 1998 until the matter became a hotly contested issue in July 2000.
In relation to the second bout of psychiatric illness suffered on or about 19 October 2000, his Honour found that such illness was suffered [423], that it was reasonably foreseeable that it could be suffered [430] ‑ [431], but that such bout of illness was not caused by (not 'as a result of') a breach of any duty of care by the respondent [442] for the following reasons.
At [432] to [434] the trial judge considered whether the respondent was in breach of its duty of care by accusing the appellant of damaging the pasteuriser lid and deliberately injuring herself then suspending her and pursuing the allegations in proceedings. The judge in his reasons [432] ‑ [434] referred to evidence from staff members who said that they had observed the appellant letting the lid fall and making comments to the effect that if the pasteuriser broke it would be replaced. The trial judge referred to surrounding circumstances which supported the possibility that the appellant might have deliberately broken the pasteuriser. His Honour then said:
In light of the situation confronting management, I consider the response taken by management was reasonable. Again, I stress that when considering what is reasonable it is necessary to take into account the other responsibilities of the hospital (see Tame's case), including protecting Ms Benjamin and Ms Htun from intimidation for raising the allegations; affording Ms Pecenka natural justice by informing her of the allegations and giving her an opportunity to respond; protecting important hospital equipment and ensuring that the Infant Formula Room remained functional.
In his reasons, the trial judge dealt with four pleaded grounds of negligence, being:
(a)the alleged failure to properly investigate the allegations;
(b)the notification of the appellant's general practitioner of the allegations;
(c)the suspension of the appellant; and
(d)the repetition of the allegations at a review hearing and at some WorkCover proceedings which are referred to below.
All of the allegations were dismissed on the basis that the respondent acted reasonably.
As a result, the trial judge dismissed the appellant's claim for damages in relation to the two bouts of psychiatric illness.
It is necessary, because of the appellant's submissions in relation to one ground of appeal, to mention that the question about whether the appellant suffered physical injury or psychiatric injury at work had been raked over in five proceedings brought pursuant to the Workers Compensation and Injury Management Act 1981 (WA). The first WorkCover proceeding was heard before Review Officer Spivey, who delivered judgment on 30 August 2001. In these proceedings, the appellant claimed workers' compensation for her right arm injury and for stress. Liability for payments for a certain period for the arm injury was conceded. The review officer found that the appellant had a psychiatric condition which resulted from her employment. The appellant therefore succeeded in proving an entitlement to weekly payments of compensation.
The employer appealed against this decision to Compensation Magistrate Hogan who, in a judgment dated 3 May 2002, found error in the original decision. The matter was remitted for rehearing before the review officer.
On 20 April 2004, after rehearing the matter, Review Officer Spivey delivered reasons, again finding that the appellant had suffered a compensable psychiatric injury in September 2000. The finding was that the appellant was entitled to weekly payments. In August 2004, an appeal against this decision was heard by Compensation Magistrate Packington and dismissed, in a decision dated 21 July 2006.
On 14 April 2005, Review Officer Spivey delivered reasons in a further application in which the appellant sought payment of statutory expenses, liability for which the respondent denied because the expenses related to a 'rotator cuff problem' and not the work‑related injury that had previously been found. Review Officer Spivey found that the appellant had not proved that she suffered a rotator cuff tear at work and dismissed the application.

The appellant's grounds of appeal

The appellant's grounds of appeal read as follows:
GROUND 1
The trial Judge erred in law and fact; in concluding that the rule in JONES V DUNKEL does not apply in circumstances of the Appellant's case.
GROUND 2
The trial Judge erred in law and fact at [415] in concluding; - that the cause of Appellant's psychiatric illness on 18 September 2000, was not the long standing unresolved conflict with Ms Petrowsky, but Appellant's reaction to Ms Hall criticism of Appellant's way she had dealt with conflict with Ms Petrowsky, which was allegedly raised by Ms Hall at performance appraisal on 28 July 2000 [419].
GROUND 3
The learned trial Judge erred in law and fact at [416] concluding that in his view it was not reasonably foreseeable to the Respondent that the Appellant would suffer a psychiatric injury as at 18 September 2000.
GROUND 4
The trial Judge erred in law and fact concluding at [417] that the Respondent was not in breach of its duty of care to Ms Pecenka/the Appellant/in relation to the claim for the psychiatric injury of 18 September 2000.
GROUND 5
The trial Judge erred in law and fact; in concluding at [442] that the Appellant's psychiatric injury suffered on or about 19 October 2000 was not a result of a breach of duty of care on the part of the Respondent.
GROUND 6
His Honour erred in law and fact by misusing his 'advantage' and making findings inconsistent with incontrovertible facts; Devries v Australian National Commission (1993) 177 CLR 472 and Abalos v Australian Postal Commission (1990) 171 CLR 167.
GROUND 7
The trial Judge erred in law and fact in not properly or at all addressing Appellant's claim in paragraph 2 of the prayer in the Statement of Claim for exemplary and/or aggravated damages.

Disposition - ground 1

The ground complains that the respondent did not call Mr Wright to give evidence. His name had appeared on the respondent's list of witnesses. Counsel for the appellant submitted at trial, that 'adverse inferences' should be drawn from the failure of the respondent to call Mr Wright. His Honour recorded the submission in the following terms:
The adverse inference that the plaintiff says should be drawn is that Mr Wright would not have assisted the defendant in respect to a number of issues listed in written submissions presented by Ms Pecenka's counsel. They include such general items as:
[M]ethod and processes involved in investigating complaints, the investigation of the pasteuriser lid breakage, the investigation of the plaintiff's injuries and the defendant's approach taken to compensation claims lodged by the plaintiff [214].
The trial judge's reasons for dismissing the submission were as follows:
The adverse inferences which it is contended should be drawn are based upon the rule in Jones v Dunkel (1950) 101 CLR 298. The rule is that a failure by a party to call a witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party's case (see Hewett v Medical Board of Western Australia [2004] WASCA 170 [130]).
The adverse inferences that Ms Pecenka's counsel contends are of such a generalised nature that it is difficult to see how any such inferences can be of any real assistance in deciding issues in this trial.
Further, the rule does not operate to require a party to call merely cumulative evidence. By this I mean calling additional witnesses to matters that have already been covered by other witnesses. Likewise there is no need to call junior-ranked witnesses if more senior people are called.
In this case the complaints made by Ms Pecenka in relation to the psychiatric injury matters are, in summary, that management failed to deal adequately with complaints about Mrs Petrowsky and negligently raised allegations that Ms Pecenka deliberately damaged the pasteuriser machine and injured herself. The only direct complaint which Mr Wright was involved in was visiting Dr Webster. This visit is not disputed and nor is the content of the discussion that took place. Further, Ms Martino, who also attended this meeting with Mr Wright, gave evidence.
In these circumstances I see no application of the principle of Jones v Dunkel arising which might lead to an adverse inference being drawn against the defendant which would be relevant to the issues to be decided by me [215] ‑ [219].

The appellant's written submissions repeat the generalised assertions made at trial about issues on which Mr Wright's evidence would not have assisted the respondent. The submissions do not identify any specific findings made by the trial judge which were made in error.
In oral submissions the appellant (representing herself) merely asserted that Mr Wright knew 'everything' about her history and that the respondent should have called him.
This ground must be dismissed. If the rule in Jones v Dunkel is to be relied on to support an appeal, it must be for the purpose of and in the course of challenging a finding of fact, or a failure to make a finding of fact, which fact was in contest and the subject of evidence at trial. The unexplained failure of a party to call a witness who that party might reasonably be expected to have called may, in appropriate circumstances, lead to the inference that the witness would not have assisted that party's case in relation to the fact in issue. The rule does not operate if there is nothing requiring an answer. There is no cause to complain about the fact that Mr Wright was not called concerning the meeting with Dr Webster because there is no challenge to the trial judge's finding about what was said at this meeting.
This ground fails for the same reason that the submission failed before the trial judge. The appellant's submissions merely refer to general areas of evidence and identify no specific finding of fact which the appellant submits was made erroneously because account was not taken of the inference that Mr Wright's evidence would not have assisted the respondent's case.
Ground 1 must be dismissed.

Disposition - ground 2

Ground 2 asserts that the trial judge erred in finding that the cause of the illness on 18 September 2000 was not the breach of duty alleged by the appellant but was instead the appellant's reaction to Ms Hall's criticism of the way the appellant dealt with the conflict with Mrs Petrowsky. The ground, in its terms, suggested that the trial judge had drawn an incorrect inference and that it would be necessary to review the evidence and to reach a conclusion about whether the weight of evidence was in favour of the cause contended for by the appellant, namely that the illness was caused by the unresolved conflict with Mrs Petrowsky.
Despite this formulation of the ground, the submissions in support of this ground contend for something quite different. The submissions contend, in effect, that the respondent was estopped from denying that the cause of the injury was the breach of duty alleged by the appellant. The appellant submits that the estoppel arises because of decisions made in WorkCover proceedings in which the appellant claimed workers' compensation for the injuries.
These submissions do not relate to the ground of appeal. However, even if the ground of appeal had alleged that the trial judge erred in not concluding that the respondent was estopped from denying that the cause of the injury was that contended for by the appellant, the ground would have had no merit. In the WorkCover claim, Review Officer Spivey held that the appellant suffered a psychological illness as at 18 September 2000 and that her employment contributed to this injury to a significant degree [243]. The hearing before Review Officer Spivey addressed the appellant's entitlement to workers' compensation, which is based on specific statutory requirements. What has to be proved to establish a right to workers' compensation is different from what has to be proved to establish a right to damages for negligence. Review Officer Spivey did not have to consider the question about whether or not the respondent had been negligent by breaching a duty of care as alleged in the common law proceedings and did not consider whether the breach of duty alleged in the common law proceedings caused the psychiatric illness.
The appellant in written submissions also alleged that the trial judge 'failed to consider properly' the fact that the respondent lodged an appeal against Review Officer Spivey's final decision and that appeal was dismissed by Compensation Magistrate Packington. Once again, the issues in the appeal related to whether employment factors contributed to a significant degree to the 'psychological condition'. No consideration was given to whether the negligence alleged in the common law action caused the illness.
Ground 2 must be dismissed.

Disposition - ground 3

The appellant contends that the trial judge erred in finding that it was not reasonably foreseeable to the respondent that the appellant would suffer a psychiatric injury as at 18 September 2000. The submissions contend that his Honour failed to consider 'properly or at all' the principles set out in Koehler's case. That submission cannot be sustained. His Honour did direct himself by reference to Koehler.
The appellant also submitted that the trial judge 'erred in law and in fact in undermining Appellant's material and credible evidence in chief ... in support of the principles of foreseeability'. That is a meaningless submission.
The appellant also contends that the trial judge erred 'in dismissing Appellant's complaints about Mrs Petrowsky to Ms Hall and Ms Martino as being not sufficient enough to alert them'.
The trial judge's finding, in effect, was that there was no evidence to suggest that there was any risk of the appellant suffering a psychiatric illness as at 18 September 2000 as a result of her conflict with Mrs Petrowsky. The appellant submits that it was clear that the appellant was suffering stress as a result of the disputation. The appellant referred to the fact that the appellant had taken stress leave in 1994 and the fact that she had made written complaints about Mrs Petrowsky, and contended that this should have led to a conclusion that it was reasonably foreseeable that the appellant was likely to suffer psychiatric injury. These submissions must be rejected. An employer's awareness that a person is suffering workplace stress does not automatically mean that it is reasonably foreseeable to an employer that this will cause a psychiatric illness: Koehler [34] ‑ [35].
Finally, the appellant submitted that the trial judge failed to 'consider properly' the evidence of Dr Bell, Dr Fitch and the Medical Assessment Panels. In [383], [396], [399] ‑ [400], his Honour did consider the evidence from those sources. The appellant does not explain why it was alleged that the trial judge failed to consider 'properly' such evidence.
The trial judge's finding that the 18 September 2000 bout of a psychiatric illness was not reasonably foreseeable was open on the evidence. No error is discernible in his Honour's fact finding or in his conclusion that the illness was not reasonably foreseeable.
Ground 3 must be dismissed.

Disposition - ground 4

This ground alleges that the trial judge erred in concluding that the respondent was not in breach of its duty of care to the appellant in relation to the claim for psychiatric injury on 18 September 2000. The appellant's submissions begin with a contention that the trial judge 'delivered misconceived reasons for his conclusion'. This is then followed by a series of argumentative submissions, merely contending that his Honour's findings about what had happened were errors. These submissions amount to no more than the appellant's contention that the trial judge should have made findings in accordance with the appellant's submissions. The findings made by his Honour in [417] and [418] were open to his Honour on the evidence. No error is discernible in his Honour's fact finding.
Ground 4 must be dismissed.

Disposition - ground 5

By this ground the appellant contends that the trial judge erred in finding that the psychiatric injury suffered on or about 19 October 2000 was not the result of a breach of the duty of care on the part of the respondent. This ground is based on a contention that the trial judge erred 'in law and fact' by failing to give 'sufficient weight and consideration' to:
a.The close relation between causation and breach of duty of care
b.The principle, that the foreseeability of harm is an element of breach
c.That the Respondent had the knowledge of the risk and of the means of reducing or avoiding it; Neill v NSW Fresh Food & Ice Co [1963] HCA 4 /'unnecessary' risk/
d.That the Respondent adduced no evidence as to the impracticability of adopting any of the measures suggested; NSW v Seedsman [2000] NSWCA 119 at 19
e.That accusing Appellant in one single day, on 20 October 2000, of deliberately and wilfully damaging the pasteurizer machine and self harm and suspending Appellant without warning on the basis of some verbal unsubstantiated allegations, was grossly negligent and against the principles of natural justice (Mr Tuttle transcript 318.5‑320) and (Mr Tuttle transcript 307‑309)
The points in (a), (b), (c) and (d) have no content. The allegation in (e) has no merit. The trial judge referred to the fact that the allegation about damage to the pasteuriser machine and self‑harm was made by employees of the respondent and the respondent was bound, in the face of those allegations, to make inquiries. The respondent was not 'grossly negligent' or negligent in making inquiries and suspending the appellant on full pay while the serious allegations were investigated.
The written submissions refer to the trial judge basing his reasoning on 'incorrect evidence'. That assertion must be rejected. The written submissions also contend without particularity that the trial judge 'failed to consider properly, material and evidentiary findings of fact'. Without particularisation, the submission has no merit. The rest of the appellant's submissions in relation to ground 5 suffer from the same lack of particularity.
Ground 5 must be dismissed.

Disposition - ground 6

This ground consists of a generalised assertion that the trial judge erred by misusing his 'advantage' in making findings 'inconsistent with incontrovertible facts'.
The appellant then contends in written submissions that at trial the appellant's trial counsel produced written submissions containing 'eight pages with 42 references to the transcript in relation to credibility and reliability of Ms Martino's evidence'. The submissions do not allege that any specific finding of fact was made in error. Insofar as the appellant appeared to assert that the trial judge erred in accepting Ms Martino's evidence, this ground reveals no error by the trial judge. The trial judge

was in the best position to make findings as to the credibility of witnesses: see Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 ‑ 562, quoted in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [68]. The appellant has not established that the trial judge failed to use or palpably misused his advantage. In oral submissions the appellant merely asserted that the trial judge should not have believed Ms Martino rather than the appellant.

Ground 6 must be dismissed.

Disposition - ground 7

This ground asserts that the trial judge erred in not addressing the appellant's claim for exemplary and/or aggravated damages.
It was not necessary for the trial judge to deal with the claim for exemplary or aggravated damages because the statement of claim, read in conjunction with the further and better particulars, made it clear that this claim related only to the claim for psychiatric illness. That claim was dismissed. No claim for exemplary or aggravated damages was made in relation to the physical injury.
A search of the closing submissions reveals no submission by counsel for the appellant that such damages should be awarded in relation to the physical injury. In any event, no proper basis for such a claim is apparent from the trial judge's findings of fact or the evidence generally.
Ground 7 must be dismissed.
BUSS JA: I agree with Pullin JA.
MURPHY JA: I agree with Pullin JA.