Robinson v Lorna Jane Pty Ltd - [2017] QDC 266

DISTRICT COURT OF QUEENSLAND

CITATION:	Robinson v Lorna Jane Pty Ltd [2017] QDC 266
PARTIES:	AMY LOUISE ROBINSON (plaintiff) v LORNA JANE PTY LTD ABN 91 065 384 616 (defendant)
FILE NO/S:	DC No 3507 of 2015
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	14-17 February, 22-26 May, 6 & 9 June 2017 Written submissions: 8, 16, 19 June 2017
JUDGE:	Koppenol DCJ
ORDER:	1. Plaintiff’s claim dismissed. 2. Judgment for the Defendant. 3. I will hear the parties as to costs.
CATCHWORDS:	TORTS – LIABILITY – LIABILITY OF EMPLOYER – whether established TORTS – VICARIOUS LIABILITY – INJURY AT WORKPLACE – EMPLOYER LIABILITY – WORKPLACE BULLYING – whether established TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – LIABILITY GENERALLY AND DAMNUM SINE INJURIA - whether plaintiff’s case on liability made out on balance of probabilities TORTS – NEGLIGENCE – WORKPLACE INJURY – SAFE SYSTEM OF WORK DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – whether established Workers’ Compensation and Rehabilitation Act 2003 (Reprint 6A), ss 305B-305E Workers’ Compensation and Rehabilitation Regulation 2003 (Reprint 5), s 112D(3), sched 9 Prince Alfred College Inc v ADC (2016) 258 CLR 134, applied Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied Wyong Shire Council v Shirt (1980) 146 CLR 40, applied Deatons Pty Ltd v Flew (1949) 79 CLR 370, applied Berhane v Woolworths Ltd [2017] QCA 166, applied The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, applied Woolworths Ltd v Perrins [2016] 2 QdR 276 (CA), applied Collings v WCB [1997] QCA 224, applied
COUNSEL:	MJ O’Sullivan for the plaintiff RM Treston QC and KJ Kluss for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff BT Lawyers for the defendant

I – Introduction

Ms Robinson was employed by Lorna Jane Pty Ltd for a total of 20 weeks (between July and December 2012). She was the manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.
She claims that during that period, she was treated inappropriately (bullied) in various ways by Lorna Jane’s learning and development manager (Ms McCarthy), to whom Ms Robinson reported and was subordinate.
That was said to have (a) caused her a psychiatric illness, with consequent loss of her employment and (at least significantly reduced) employability, and (b) triggered her pre-existing mixed personality disorder.
She was placed on stress leave by her doctor on 1 December 2012. She was 36 years of age at the time. She then applied for workers’ compensation and has never returned to work.
Ms Robinson also claims that she suffered physical injuries (haemorrhoids) when lifting and moving heavy boxes of stock at the DFO store on two occasions.
She claims more than $570,000 as damages for negligence.
Both liability and quantum are in issue.
For the reasons which follow,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QDC 266
Decision Date: 3 November 2017

CaseChat Overview and Summary

In the matter of Robinson v Lorna Jane Pty Ltd, the primary dispute involved Ms Robinson's claims of workplace bullying and physical injuries incurred during her employment at the DFO store. The case was adjudicated in the Federal Circuit Court of Australia. Ms Robinson contended that she was subjected to workplace bullying by her manager, McCarthy, and that she sustained a physical injury while lifting heavy boxes at work. Lorna Jane Pty Ltd, the employer, denied these claims and argued that any injuries Ms Robinson suffered were not caused by workplace incidents or employer negligence.

The central legal issues before the court were whether Lorna Jane Pty Ltd was vicariously liable for the alleged workplace bullying by McCarthy, and whether the employer was liable for the physical injury Ms Robinson claimed to have suffered from lifting heavy boxes. Additionally, the court needed to determine if Ms Robinson had established the requisite elements of her claims, including causation, under the applicable legislation and common law principles. The court also assessed the adequacy of the employer's measures to ensure a safe working environment and the extent of any damages claimed by Ms Robinson.

The court found that Ms Robinson had not proven her claims on the balance of probabilities. Regarding the alleged bullying, the court held that there was insufficient evidence to conclude that warning or counselling McCarthy would have prevented Ms Robinson's psychiatric injury. Consequently, Lorna Jane Pty Ltd was not held vicariously liable for the alleged bullying. As for the physical injury, the court found that Ms Robinson's claims about the weight and number of boxes she lifted were implausible and contradicted by evidence from other employees. The court concluded that the lifting incident, if it occurred, did not cause Ms Robinson's haemorrhoids, and therefore, Lorna Jane Pty Ltd was not liable for the physical injury. The court dismissed Ms Robinson's claims and ordered judgment in favour of the defendant. The court will subsequently hear submissions regarding the costs of the proceedings.

Orders

Orders of the court

1. Plaintiff’s claim dismissed.

2. Judgment for the Defendant.

3. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that the conclusion cannot be reached, on the evidence and on the balance of probabilities, that warning and counselling McCarthy would have protected Ms Robinson. Conclusion: Psychiatric injury claim fails Ms Robinson failed to prove all of the applicable WCRA requirements, on the balance of probabilities. That means that she failed to prove the essential element of causation—and as a result, failed to prove her claim. That completes the consideration of her case on liability with respect to her claim for the alleged psychiatric injury. Ms Robinson’s claim in this regard was that whilst she was lifting and moving heavy boxes of stock at the DFO store on 10 October 2012 and again on 1 December 2012, she felt the sudden onset of perianal pain in her buttocks. That resulted in the appearance of a lump in her perianal area, which was diagnosed as thrombosed external haemorrhoids. Ms Robinson underwent surgery for haemorrhoids (and other issues) in June 2013 and December 2013. She pleaded that since the surgery, she experiences urgency of micturition and of defecation. Those symptoms have persisted to the present time and interfere with her ability to engage in all activities including work. Mr O’Sullivan submitted that:[100] “[l]ifting a heavy awkward box or boxes caused [the physical injury]. The injury was caused by unreasonable and/or awkward lifting performed by the plaintiff.”[100] Outline of Argument, para 44. Lorna Jane denied that (a) the alleged incidents occurred, and (b) Ms Robinson suffered any injury. It also pleaded that (c) any boxes that Ms Robinson may have needed to lift or move were not heavy or awkwardly-shaped. The two alleged incidents will now be considered. Ms Robinson said that (a) on that day, she lifted and moved (into the stock room) 60 to 100 boxes of stock, some of which weighed between 5kg and 10kg and others that she thought were up to 20kg, and (b) as a result, she sustained a thrombosed external haemorrhoid. There are five reasons why those allegations should not be accepted. First, the store had a designated full-time employee who was responsible for stock. That was Ms Alyce Clem. She had worked at the DFO store since November 2011. It was her job to attend to stock receival, storeroom management and visual merchandising.[101] Although Clem was on study leave (and not at work) on 10 October 2012, she gave evidence that there was never an occasion at the DFO store when 60 to 100 boxes of stock had to be moved in one day.[102] [101] T7-80, L41-T7-81, L2.[102] T6-84, LL1-2. Clem said that (a) “the stockroom was [her] baby”, and (b) it had not been “changed around” by the time that she returned to work on the morning of 11 October 2012, because she “would’ve noticed a massive – like, a big difference in the [stock] room just because that was my role”. She was pressed about that in cross-examination but insisted that “I would notice 10 boxes be [sic] moved, but not two.” She also said that the average weight of boxes of stock was 5kg to 8kg—but not up to 20kg because “[t]hat’s very heavy and I wouldn’t have been able to lift anything close to 20 kilos.”[103] [103] T6-84, L42-T6-85, L5; T6-87, LL1-12; T6-95, LL6-8; T6-94, LL18-19.

Ratio Decidendi

Legal Principle Established

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