Stevens v DP World Melbourne

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-17-03627

JAMES THOMAS STEVENS	Plaintiff
v
DP WORLD MELBOURNE	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 21, 22, 26, 27, 28, 29 April, 3, 4, 5, 6, 10, 11, 12, 13 May, 21, 22, 23 June, 12, 13, 14 July and 23 August 2021
DATE OF JUDGMENT:	22 December 2021
CASE MAY BE CITED AS:	Stevens v DP World Melbourne
MEDIUM NEUTRAL CITATION:	[2021] VCC 2154

REASONS FOR JUDGMENT
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Subject:TORT – NEGLIGENCE – CONTRACT – BULLYING
Cases Cited:Barker v Commonwealth Bank of Australia (2012) 296 ALR 706; Brown v Maurice Blackburn Cashman [2013] VSCA 122; Commonwealth v Aman Aviation Pty Ltd 174 CLR 64; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Findlay v State of Victoria & Ors [2009] VSCA 294; Foggo v O’Sullivan Partners (Advisory) Pty Ltd [2011] NSWSC 501; Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120; Hadley v Baxendale (1854) 9 Ex 341; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Johnston v Holland [2016] VSC 422; Jones v Dunkel (1959) 101 CLR 298; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Kozarov v State of Victoria [2020] VSC 78; Lloyd v Healthscope Operations Pty Ltd [2020] VCC 2032; McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903; Munday v St Vincent’s Hospital Ltd [2021] VSCA 170; New South Wales v Lepore (2003) 212 CLR 511 Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; Schokman v CCIG Investments Pty Ltd [2021] QSC 120; State of Victoria v Kozarov [2020] VSCA 301; Swan v Monash Law Book Co-operative [2013] VSC 326; Tame v New South Wales (2002) 211 CLR 317; Wodonga Regional Health Service v Hopgood [2012] VSCA 326; Yousif v Commonwealth Bank of Australia [2010] FCAFC 8
Judgment: Proceeding Dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Ms J Zhu	Shine Lawyers
For the Defendant	Ms R Annesley QC with Mr T Storey and Ms L Burke	Wisewould Mahony

HIS HONOUR:

Introduction
1In September 2004, the plaintiff commenced work for the defendant, who was then called P&O Ports.[1] The previous corporate iterations of the defendant are not relevant to the determination of the proceeding. He commenced employment at the wharf as a casual stevedore. The workforce was estimated at approximately 600.[2] The work performed was outdoors. It was physically demanding. It involved the operation of many large machines.
[1]Joint Court Book (‘JCB’) 93.
[2]T303.
2From the commencement of his employment in 2004 and until about 2006 the plaintiff appears to have worked without incident.

Overview of claims
3The plaintiff’s claim is brought in negligence and in contract. He says that in the course of his employment with the defendant, and from approximately 2007 to 2012, he suffered mental injury due to the stresses and strains of being bullied and harassed at work and subjected to ostracism within the workplace by co-workers and management.[3] The plaintiff believes that he was bullied and harassed at work because of his avowed commitment to reporting non-compliance with safety-related issues on site. He said that he was bullied by fellow dock workers and by management. He alleged that he was subject to confronting and degrading behaviour in the workplace because of the stance he took on safety as an elected Health and Safety Representative (HSR).
[3]Further Amended Statement Of Claim (‘FASOC’), paragraph 4.
4The plaintiff said that the management of the defendant failed to take steps to eliminate or reduce the risk of bullying conduct by co-workers despite him having alerted it to its occurrence.
5The plaintiff said that he also suffered mental anguish because management failed to address various safety issues at work that he had raised for its attention.
6The plaintiff said that he also suffered mental injury because of the manner in which a “matrix” system was utilised in the workplace for promotions and upgrades. He said the matrix was manipulated to operate to his specific disadvantage and as retaliation for his frequent referral to management of safety issues and for having implicated co-workers in safety issues that had become known to them as a result of management allowing some of his complaints to become public.
7The plaintiff argued that the matrix constituted a system of work that was manipulated and utilised to victimise and humiliate or undermine or threaten him by obstructing his promotion and therefore constituted bullying. The plaintiff contended that he was victimised by being evaluated unfairly and detrimentally in the operation of the matrix because of his repeated raising of safety and maintenance issues on the dock. He also alleged that the detrimental treatment he was afforded in being evaluated unfairly stemmed from a culture that prevailed at the workplace in which any worker deemed a “dobber” was labelled a “dog” or a “rat dog” and treated less favourably. The plaintiff says he was deemed to be a “dobber” and was labelled a “dog” or a “rat dog” and he was treated less favourably in the promotion matrix because of it. That analysis of the allegations is substantially enlarged upon than was the subject of the plaintiff’s pleading which at paragraph (v) alleged the following:
“The Plaintiff was further ostracized and treated less favourably than other workers when he was denied promotion to from Guaranteed Wage Earner (“GWE”) to Variable Salary Employee (“VSE”) the latter of which involved better hours, more superannuation, and other benefits, in circumstances where Gary Ellis had told the Plaintiff whilst the Plaintiff was in his office words to the effect of “I will make sure you are the longest serving GWE”.
8The plaintiff claimed that the upshot of his employment with the defendant was that by June 2011 he was physically unwell and experienced chest pains and tightness in his chest.[4] He took time off work from August 2011 to 22 December 2011. The reason notified to his employer was “stress because of a lack of job rotation”.[5] That notification did not implicate his condition as due to the alleged impugned conduct.
[4]Transcript (“T”) 153.
[5]T155. See T156, Line (“L”) 17-19, for clarification of plaintiff’s Return To Work date.
9The plaintiff returned to work on 22 December 2011. He continued to work until he permanently ceased employment in June 2012.[6] He has not worked since. He is 50 years of age. He was 41 years old when he ceased employment.
[6]T160.
10The plaintiff said that his mental injury has incapacitated him for any and all employment.

The Defence
11The defendant denied liability for the plaintiff’s injuries. The defendant said that the conduct of fellow workers and of supervisors had not been proved to have occurred. If it did occur it did not amount to bullying. The defendant denied that the matrix system was corrupted and used to operate unfairly and to the plaintiff’s disadvantage. The defendant disputed that a recognised duty of care resided with it in the application of the matrix. The defendant denied that it failed to address the great bulk of safety issues raised by the plaintiff on the dock. It said that if not all matters raised by the plaintiff were dealt with to his satisfaction this does not equate to a failure to adhere to safety on its part. The defendant said that it was not on notice of the plaintiff being at risk of mental harm. Moreover, the defendant said that the plaintiff has not alleged that the defendant was vicariously liable for any conduct committed by its employees and might be found proved to have occurred and to have caused him to suffer injury. Generally, the defendant submitted that the plaintiff had failed to lead evidence that established on the balance of probabilities that “but for” any act or omission on its part it breached any duty owed by it to him.[7]
[7]Findlay v State of Victoria & Ors [2009] VSCA 294, [2]; Wodonga Regional Health Service v Hopgood [2012] VSCA 326, [31]; Kozarovv State of Victoria [2020] VSC 78; and Munday v St Vincent’s Hospital Ltd [2021] VSCA 170.

The witness evidence
12The following people testified:
(a)   James Thomas Stevens (plaintiff)
(b)   Arshad Ghani, the plaintiff’s general practitioner[8]
(c)   Joanna Narelle Stevens, the plaintiff’s wife[9]
(d)   Peter Cunningham[10]
(e)   Wayne David McKaid[11]
(f)    Stephen John Murray, who was a straddle driver at DP World from October 1996 until January 2016[12]
(g)   Sharon Lee Bowker.[13]
[8]T796-844.
[9]T845-904.
[10]T904-971.
[11]T972-986.
[12]T990-1040.
[13]T1040-1090.

The Defendant witness evidence
13The defendant adduced evidence from the following witnesses:
(a)   Leissa Pitt, who was the Safety Manager[14] between 2008 and September 2010
(b)   Gary Ellis, who was the Operations Superintendent between January 2006 and 2009/2010 and then worked as Operations Manager until 2014[15]
(c)   Jannifer Kerr, who was the Human Resources Manager between August 2006 and November 2011.[16]
(d)   William Goulding, Shift Supervisor[17].
[14]T1104.
[15]T1469.
[16]T1227-1228.
[17]        T1776.
14I have had regard to all of the evidence both oral and documentary including the addresses of counsel and written submissions together with such of the medical evidence as proved necessary to explain my findings. The evidence also included surveillance of the plaintiff obtained by the defendant and secret audio recordings the plaintiff made of conversations he had with fellow workers and management during his employment. The parties produced a transcript of the audio recordings. It was used as an aide-memoire to assist when listening to the audio recordings, but it was not intended nor advocated by either party to constitute an authorised or agreed transcribing of the relevant recordings.

Credit
15As these reasons endeavour to explain, I have found that a considerable amount of the plaintiff’s evidence was unreliable and, unfortunately, in some instances, untrue. The matters of honesty were not trifling but included assertions about his emails to the defendant being pinned on noticeboards by his employer for all the world to see when in fact they were not and to his account of whether he had used recordings he made of workers and management in preparing his answers to interrogatories that changed almost by the minute, to an account he gave of being berated by Mr Ellis in his office despite his secret recording being distinctly to the opposite effect and in mischaracterising the conduct by Ms Kerr in her response to a union election poster that had been defaced by an offensive description applied adjacent his name. Apart from dishonesty, the plaintiff was in other respects a very unsatisfactory witness. Even in regard to some very limited instances in which I have accepted his evidence of the existence of conduct to which he was exposed, his descriptions were exaggerated and his language florid.
16The plaintiff is a stickler for safety. Some doctors have suggested his concern for work safety borders on the obsessional. Mr Morfuni contested the evidentiary basis for those of the defendant’s medico-legal experts who have expressed such an assessment of the plaintiff. Putting aside for the moment the psychological basis for such an opinion and whether it is a characteristic trait that warrants a specific diagnostic finding, that is my impression that I formed of the plaintiff from listening to and observing him in the course of his evidence. There is little doubt that safety was a central tenet of his daily work and the fear of death or injury to himself or his co-workers his steady companion.
17My finding that the plaintiff was extremely focussed on safety is not to say that the evidence refutes that the issues he raised with the defendant by way of reporting hazards or near misses were not legitimate, but I am far from persuaded that their frequency and their number is in every instance evidence of their commensurate objective seriousness. The defendant identified that over the course of the plaintiff’s employment he lodged an average of ten[18] safety notices per day and approximately 300 a year over his employment.[19]
[18]T1486, evidence in chief, Ellis.
[19]T289, cross-examination of plaintiff. T1486, evidence in chief, Ellis. T1130, evidence in chief, Pitt. (In address by Ms Annesley at T50.)
18The plaintiff exhibited obsessional traits that were evident in listening to and observing him over the course of the trial. He was prone to hyperbole and to adopt heightened descriptions of treatment including having been “hunted down” in the workplace by fellow employees and by management.[20] I am satisfied that these traits are more probably than not characteristics attendant in him and were not caused by or contributed to by conduct on the part of the defendant or its employees as a result of a developing mental illness.
[20]A turn of phrase adopted in cross-examination by the plaintiff about events prior to the bullying allegations pleaded in the FASOC.
19Because of the plaintiff’s commitment to safety and the frequency of his reporting of it, I suspect the defendant was flummoxed to some extent in how to appropriately manage him in the workforce and this contributed on occasions to the plaintiff feeling hard done by and unfairly treated. I think the employer created something of a rod for its own back by its implicit encouragement to the plaintiff to continue his pursuit of maintenance and safety issues whilst not always adequately addressing the plaintiff’s expressions of concern that he was being denied promotion under the matrix because of his adherence to and reporting of safety issues. However, the fact of the defendant having not managed the plaintiff in a different and perhaps better way does not equate to a finding that the plaintiff was bullied by management or employees of the defendant or that the defendant breached a duty of care to provide a safe workplace. Indeed, I am positively satisfied that it did not. Despite the plaintiff’s concerns, and my own sense that the defendant might have better addressed the conundrum which the plaintiff presented, I am not satisfied that he has proved on the balance of probabilities that because of his ardent advocacy and reporting of safety he was victimised by supervisors and foremen and management in his career progression by means of a corruption of a matrix system.
20I am not satisfied that the plaintiff proved a breach of contract.
21I am not satisfied that the defendant was on notice of a risk of the plaintiff suffering psychiatric injury because of the behaviour and specific conduct about which he complained or because of the operation and use made of the matrix system.
22Despite being satisfied that the plaintiff on occasions fabricated complaints and exaggerated descriptions of conduct to which he was allegedly subjected, nonetheless, I am accept after a consideration of all the evidence, that the plaintiff was unpopular with certain co-workers. However, dislike is not unlawful conduct. In any organization, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There will be no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
23I accept that on occasions the plaintiff was addressed by co-workers by the use of offensive language and that he was described in unflattering terms.
24I am satisfied that the plaintiff was subjected to one particular action by a worker or workers unknown in connection with his work gear. It was offensive and humiliating but I am not satisfied it was conduct that the defendant could reasonably have foreseen or prevented its occurrence. It was not bullying.
25I am not satisfied that the plaintiff was subjected to repeated behaviour or a pattern of conduct that amounted to bullying.
26I am not satisfied the duty of care alleged by the plaintiff in connection with the matrix exists. I am not satisfied that the matrix amounted to a system of work. It was a construct designed to give effect to promotions and upgrades that themselves were set out in the applicable industrial agreement. If I am wrong, and it did, amount to a system of work, then I would not have been satisfied as a matter of fact that the plaintiff proved on the requisite standard of proof that the matrix was used by a person or group of persons or managers of the defendant as an instrument to bully him by way of victimising, humiliating, undermining or threatening him.

The basis of the defendant’s liability in negligence
27The plaintiff did not plead vicarious liability. Mr Morfuni submitted it was unnecessary. Ms Annesley submitted that it was a fundamental omission in the plaintiff’s case. Rather the plaintiff expressed the duty of care owed to him by the defendant in the following terms:
“By virtue of its employment of the Plaintiff the Defendant at all material times owed the Plaintiff a non-delegable duty of care to:
(a)   devise, institute, maintain and enforce a safe system of work;
(b)   devise, institute, maintain and enforce a safe place of work;
(c)   provide such information, instruction, training or supervision to its servants or agents as was necessary to enable those persons to perform their work in a way that was safe and without risks to health;
(d)   not expose the Plaintiff to unnecessary risk of injury;
(e)   ensure that its servant or agents did not expose the Plaintiff to unnecessary risk of injury;
(f)    ensure that its servants or agents complied with all of their obligations under their contract(s) of employment with the Defendant;
(g)   properly supervise its servants or agents so as to ensure:
i.that they did not expose the Plaintiff to unnecessary risk of injury;
ii.that they complied with their obligations under their contract of employment and any directions, policies and codes of conduct issued by the Defendant;

(h) carry out risk assessments and take steps to control or minimise known risks so as to ensure that the Plaintiff was not exposed to unreasonable risk of injury whilst performing his duties for the Defendant;
(i) Minimize the risk of the Plaintiff suffering psychiatric injury as a consequence of carrying out his duties and the conduct of other employees of the Defendant towards the Plaintiff.”[21]
[21]FASOC, paragraph 3.

28The attribution of vicarious liability to a corporate entity for the wrongful conduct of its employee is not mere matter of technical pleading. The attribution that renders an employer liable for the wrongful conduct of its employee requires that there be a sufficiently close connection between that conduct and the type of conduct the employee was engaged to perform, in order to conclude it was conduct carried out in the course of that employment.[22] The greater the authority in which an employer clothes an employee, the greater the risk of harm flowing from conduct abusing that authority and the easier it is to infer the conduct was done in the course of employment.[23] Not only was vicarious liability not pleaded but the acts facts and circumstances by which the defendant should be assessed as vicariously liable was not explained.

[22] New South Wales v Lepore (2003) 212 CLR 511.
[23] Ibid.
29In any event, and because I am not satisfied that the conduct complained of comprised bullying the issue does not require to be resolved.
30In final address Mr Morfuni argued that the defendant is directly liable to the plaintiff for permitting bullying to reoccur in circumstances in which it was reasonably foreseeable to the defendant and it was on notice that a psychiatric injury could follow.
31Mr Morfuni further argued that in cases of bullying mental injury is always reasonably foreseeable that and that an employee is not required to prove that their employer was on notice of a risk to health to enliven a duty of care because bullying inherently give rise to a reasonably foreseeable risk of mental harm. As Mr Morfuni would have it, once the act is proved the only issue reaming is one of proof of injury.

The Conduct of the proceeding
32The trial of this proceeding occupied 23 days. At various points I encouraged the parties to explore the potential for resolution because of the costs and uncertainties attendant such lengthy litigation. Many witnesses were called. Thousands of pages of documents, including numerous medical reports, were referred to and numerous exhibits were tendered.
33Unfortunately, the nature of claims at common law alleging the occasioning of mental injury in the workplace as a result of a type of conduct that is referred to broadly as “bullying,” is that very frequently recourse is had to multiple incidents and interactions between a plaintiff and co-workers and management with the result that each allegation is the subject of evidence, cross-examination, evaluation and, finally, determination. This was one such case.
34Moreover, in this proceeding, the events alleged by the plaintiff about which he complained commenced over 15 years ago. It is unsatisfactory that such a period of time elapsed in the case coming on for trial. Memories are fallible and prone to unreliability at the best of times but the more so with the passage of time. This was evident in the proceeding particularly for the defendant witnesses. For the corporate defendant, the expression that “the caravan has moved on” is apt. It was uncoupled a long time ago. None of the defendant’s principal witnesses were still employed by the defendant. Additionally, Mr Ellis, an important witness for the defendant, has suffered significant health issues in recent times and his memory was diminished beyond the ordinary with the result that a good deal of his evidence warranted particular attention. This cautious and considered approach was also required in assessing the evidence given by Ms Kerr and Ms Pitt, the other principal defendant witnesses, neither of whom had retained much detail of critical events. A good deal of their evidence was recovered from documents adduced in evidence. However, I found each of Mr Ellis, Ms Kerr and Ms Pitt applied themselves conscientiously to the task at hand as witnesses, making concessions when warranted and being frank about the extent of their independent memories of events. I am satisfied that they each endeavoured to give an honest account of themselves and the matters relating to the plaintiff in which they came to be involved. By comparison, for the plaintiff, I am satisfied that the narrative has become a central element of his life for almost a decade and a half. His presentation in court led me to believe that this case has become almost the sole focus of his life. That is perhaps understandable. However, it was his occasions of untruthfulness and frequent unreliability that clouded my opinion on important parts of his evidence and not that he presented as singularly determined to prove that he was harmed in his employment with the defendant.

The Matrix system
35It is helpful in understanding my reasons if I provide some preliminary insight into the operation of the matrix system in place at the workplace. The matrix was a construct used to determine which employees would receive skills upgrades and promotions.[24] It applied across all ports was not peculiar to the defendant’s operations at Swanson Dock. Other than for the purpose of placing personnel in appropriate roles it had nothing to do with the manner or the method of the work duties on the docks. It was an industrial construct arrived at after negotiations between the Maritime Union of Australia (the MUA), a Registered Organisation of which the plaintiff was a member, and the management of the defendant.
[24]T12-13, address by counsel. T69, plaintiff evidence in chief. T446, plaintiff cross-examination.
36The matrix provided that if any employee felt aggrieved by failing to be promoted or given the opportunity for a skills upgrade, a grievance could be lodged. The grievance would be notified to Human Resources. A process was then initiated by way of a grievance meeting and a decision made whether the employee’s grievance had been upheld or not. The evidence suggests that these internal appeals rarely if ever succeeded. That fact itself does not equate to a corrupt operation of the system and, moreover, that decisions were rarely if ever overturned by management is an indication that it was not operating to the plaintiff’s deliberate and discriminatory disadvantage by the hand of and at the direction of the defendant as he alleged.
37The matrix operated in an additional way, when, for instance, Human Resources advised that there were positions which needed to be filled. It would be used to determine who should receive a promotion to fill available positions. Whilst an employee could apply for a promotion or a skills upgrade, anyone who was available and eligible for a skills upgrade/‌promotion would automatically be considered and assessed and graded as part of the matrix.
38An employee would be assessed according to a number of categories: workplace attitude, performance and disciplinary matters, absence management, length of service, experience in position and skills recognised for the position.[25] The length of service and sick days and the like was automatically populated from information held by Human Resources. The only subjective criteria assessed by an employee’s peers were “performance” and “workplace attitude”.
[25]JCB 581.
39The process of assessment involved between 10 to 14 workers each being provided with a tick-a-box form to complete, ranking the employee from 0 to 5 on performance and workplace attitude.[26] The information was collected by Human Resources and collated into a spreadsheet. The employees who received the highest overall score (a cumulation of the scores in all the categories) would then be provided with the relevant skills upgrade/‌promotion.
[26]T1243, L30-31 – T1244, L1-11 (Kerr). T1396, L25-31 – T1397, L1-3 (Kerr).
40During the plaintiff’s employment he lodged thirteen unsuccessful grievances – that is, internal appeals – against the promotions or skills upgrades of other employees who ranked higher than him in assessments. The plaintiff was successful in one grievance but that he declined. He was eventually made a Variable Salary Earner (VSE) when a reclassification/‌restructure occurred in the workplace and the classification of Guaranteed Wage Earner (GWE) was abolished.[27]
[27]T166.
41The plaintiff was at pains to point out that he was a very good employee. There is no evidence that during the period of his employment he received a warning about his work performance or that he was disciplined in relation to his conduct at work.[28] However, as will be seen, the plaintiff’s record does not mean that he was inevitably bound to succeed in promotions among a large workforce that included other very good employees or, more particularly, that because he did not, and that the grievances he lodged were not upheld, that the operative reasons were ulterior or amounted to a pattern of conduct that should be treated as bullying. The evidence established that on each occasion of grievance even had the plaintiff been marked higher in the two categories of performance and work attitude he would not have been near the next highest employee on the table of results for markings. The full results placed the plaintiff in an average ranking. That reality was not displaced over the course of the hearing by evidence to the contrary.
[28]T70.

Who is the plaintiff?
42The plaintiff is married with three children. He was born in Ararat. His parents had a farm. He attended Marian College. He completed Year 12. He commenced work as a panel beater. He completed his apprenticeship. He came to Melbourne and worked as a panel beater. In about 2000 he suffered a workplace injury. He drilled a hole in his index finger. He developed a tennis elbow in the left arm. He stopped work. He next worked as a private investigator for about a year. He was not suited to it. He worked as a truck driver about 18 months. He then commenced employment with the defendant.
43The plaintiff had no history of mental illness or treatment for any related condition prior to the commencement of his employment with the defendant.

2004 employment commences
44The plaintiff commenced employment with the defendant in 2004. He worked without incident and apparently with some of the people he has implicated in bullying and harassing conduct that was alleged to have commenced in about late 2007.

The General working environment
45The defendant painted a portrait of the docks with which I largely agree. Ms Annesley described the workplace as “a robust workplace environment which was not for the faint hearted. The job of a stevedore demanded physical toughness and strength, a preparedness to work outdoors in all weathers, an ability to work under pressure associated with the constant demands of transport distribution, an ability to drive massive machines and move heavy containers, in an environment rich with risks and hazards by sheer nature of the tasks involved”.[29] The workplace was a noisy industrial waterfront. Stevedores including the plaintiff swore and used crude language. If not part of the everyday vernacular, it was not exceptional.
[29]Defendant’s written submissions, [3].
46Of course, the fact of the existence of salty language or a rough and vulgar work culture does not constitute a basis for exemption from the equal protection of persons in their employment to be able to conduct themselves free from the risk of physical or mental harm from negligent conduct and unsafe work practices. However, the working environment, and the plaintiff’s own adaptation to it and engagement with it, may be very relevant in objectively assessing the conduct complained of by him and what a reasonable person would make of it. As was said in Johnson v Box Hill Institute of TAFE,[30] a consideration of the context of the particular place of work and the particular systems of work is relevant.
[30][2014] VSC 626.
47Despite the portrait painted of the workplace, I have not interpreted the plaintiff’s case for bullying and the infliction of mental injury because of it as having been caused because he took umbrage to, or was affected mentally by, offensive language being thrown about from time to time. Indeed, the plaintiff used crude language. Instead, the plaintiff’s complaint is that it was the context and imputed meaning of some of the language that was directed at him that he interpreted as amounting to threats of physical harm that lay at the heart of much of his complaint. No point was raised by either party that some of the behaviour alleged by the plaintiff of threats including a threat to kill him could amount to criminal conduct that should be susceptible to proof on the criminal as opposed to the civil standard of proof.
48Before addressing the specific allegations relied on by the plaintiff, it as well to address the content of the plaintiff’s employment with the defendant including the claim for damages for breach of contract of employment.

The Plaintiff’s employment
49The plaintiff was a member of the MUA. There were a number of casual worker classifications that operated at the worksite. I will address each of them briefly.
50The plaintiff commenced work as a supplementary worker or “suppo”. A supplementary worker was called on duty as needed. After about 12 months’ employment, the plaintiff became a Guaranteed Wage Earner or GWE, and was guaranteed two shifts a week. He had to be available for shift work. Shifts were from 6.30am to 2.30pm (day shift), from 2.30pm to 10.30pm (afternoon shift), and 10.30pm to 6.30am (morning shift). Allocation of shifts lay in the control of the defendant. On the day prior, staff were called in and told whether they would be working either a morning, night or evening shift. There was one additional casual worker classification, that of a Variable Salary Earner (VSE). A VSE was guaranteed four shifts a week. The balance of the workforce consisted of permanent Full-Time Salaried Employees (FSE). FSEs worked a roster.[31]
[31]T59-60.
51In 2007, the plaintiff was elected by his peers in the casual work group as its Health & Safety Representative.
The Plaintiff’s duties
52The plaintiff’s principal duty was driving a straddle truck. A straddle truck is a motorised machine with a gap between large wheels enabling it to pick up containers either from a ship and be taken to trucks on the wharf for distribution, or to be taken from trucks to be loaded onto ships and then to be exported to the world. Straddles are large machines that weigh at least 62 tonnes and up to 120 tonnes when loaded.[32] There were around 60 straddles in operation at the time the plaintiff was employed with the defendant.[33]
[32]T62, L27-31.
[33]T63, L22.
53The method of communication between straddle drivers was via a radio with the Equipment Controller (EC).[34] There could be a number of ECs on duty at a given time.
[34]T64, L21-31.
54Other duties that the plaintiff could be required to perform from time to time involved washing machinery using a gurney, using a cherry-picker, refuelling and checking of machinery, checking tyres, and lashing and pinning which entailed securing the containers once they had been loaded either on a truck or more usually on a ship.
55The plaintiff said he enjoyed his job. Mrs Stevens confirmed that her husband enjoyed his employment. The plaintiff’s evidence that throughout his employment, and despite the travails and ongoing verbal assaults and distressing behaviour to which he was subjected, that he nonetheless continued to enjoy his job was one of a number of the peculiar traits he exhibited.
Liability in Contract
The Contract of employment – letter of engagement and policy documents
56Although the plaintiff pleaded a separate claim for liability for breach of contract, the determination of the content and extent of the defendant’s duty of care in negligence is a matter that is relevantly also informed by the contract between the parties, although the duty of care exists outside the contract of employment. There are a number of duties recognised in law owed by an employer to an employee that operate independently of express contractual terms. These include, but are not limited to:
(a)   The provision of a safe system of work and supervision. The provision of a safe system of work includes the procedures and processes in place to first eliminate, then minimise the hazards and risks in workplace operations.
(b)   Provision of a safe place to work.
(c)   The taking of reasonable care to protect an employee against foreseeable risk of injury arising out of their employment.
57The defendant’s obligations to the plaintiff included being bound in law to comply with and ensure compliance with OH&S legislation.
58Upon commencement of employment the plaintiff was provided with a training and an employee induction trainee record book.[35] The plaintiff said he was instructed to report hazards and to follow procedures.[36] The plaintiff adhered to this entreaty assiduously.
[35]JCB 492; T59, L1-8.
[36]T65, L27-31.
59The plaintiff claimed that as a matter of contract he is entitled to the benefit of the terms of the applicable Enterprise Bargaining Agreement (EA), as well as the terms and conditions contained the P&O Human Resources Handbook. He said he was also entitled to the protections against unwelcome conduct prohibited by the defendant’s “Discrimination, Harassment, Bullying and Freedom of Association Policy.” He contended that the contents of each of these documents were express terms of his employment.
60The plaintiff’s letter of confirmation of employment was dated 16 September 2004. It included language such as, “You will be required to comply with all Company policies”[37] and “These documents will be provided to you and you are expected to familiarise yourself with the terms and conditions governing your employment therein.”[38] Under the heading “Award Coverage” paragraph 5 of the letter stated that, “The terms and conditions that apply to your employment are governed by the P&O Ports Limited West Swanson Terminal Enterprise Agreement 2002, the P&O Ports Limited Melbourne Enterprise Agreement 2002 and the Stevedoring Industry Award 1999. Additional information as to company policies and procedures are provided in the P&O Ports Human Resources Handbook as amended from time to time.”[39]
[37]Exhibit P1, JCB 490.
[38]Exhibit P1, JCB 489.
[39]Exhibit P1, JCB 489.
61The plaintiff argued that because he was expected to comply with the requirements set out in these documents “it would defy both logic and common sense” to suggest that the defendant was not contractually bound to observe them too.[40] That is to say, the obligations were mutual and not unilateral.
[40]Foggo v O’Sullivan Partners (Advisory) Pty Ltd [2011] NSWSC 501, [113] and [116] (Schmidt J), and Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193.
62The plaintiff also relied on the language used in each of the documents as being contractual because the defendant’s letter of employment referred to them as “terms of employment”. Furthermore, Clause 5 of the letter of engagement specifically referred to the EA and company policies. Clause 6 of the letter of offer of employment stated that many of the benefits and conditions set out in the letter derived from written company policies, procedures and guidelines.
63The defendant’s Handbook included language such as that the employer considered “safety to be of primary concern in the conduct of [its] business”.[41] It confirmed that it “is committed to providing a safe and healthy workplace to protect all those affected by its activities and to avoid or minimise any adverse environmental impact on its business.” It went on to say that “Employees are reminded that everyone within P&O Ports is responsible for managing health, safety and environment matters and acceptance of their individual responsibility and respective accountability is critical to the successful implementation of Occupational Health Safety and environment Policy.”[42] It set out the employees’ responsibilities.[43]
[41]Exhibit P53.
[42]Exhibit P53.
[43]Exhibit P53, Handbook 8.
64The plaintiff alleged that the Policy was contractual because it included a promise that the employer would “take action to deter all forms of this behaviour to increase awareness that such behaviour is unacceptable and to deal with complaints appropriately”[44] and that “the purpose of the policy was to make the employee aware of … what the rights obligations and duties in relation to ensuring a work environment free of discrimination … and the procedure the company has in place to hear and determine workplace complaints”.[45] The Policy contained examples of what might constitute bullying:

“The following types of behaviour, particularly if they’re directed towards an individual repeatedly, are examples of conduct that may amount to bullying. (a) demeaning language; (b) threats; (c) verbal abuse; (d) outbursts of anger/‌aggression; (e) physical or verbal intimidation; (f) excluding or isolating; and (g), ganging up.”[46]
[44]Exhibit D40, JCB 663.
[45]Exhibit D40, JCB 663.
[46]Exhibit D40, JCB 666-667.

65The plaintiff said that the Policy prohibited the workers at the workplace from being involved in workplace bullying, which the policy identified may also amount to unlawful discrimination. The Policy defined workplace bullying as “repeated, unreasonable behaviour directed towards an employee or group of employees that may cause harm, including risks to health and safety.”[47] It defined “Unreasonable behaviour”, as “behaviour that a reasonable person, having regard to all the circumstances, would expect to humiliate, intimidate, or threaten another person, and such behaviour can include an individual, group actions or practices which humiliate, intimidate or threaten another person.”[48]
[47]Exhibit D40, JCB 666.
[48]Exhibit D40, JCB 666.
66The plaintiff said that the Policy provided that “Reasonable action taken in a reasonable manner by an employer to performance manage an employee or to discipline or dismiss an employee will usually not constitute bullying.”[49]
[49]Exhibit D40, JCB 667.
67The plaintiff said that the Policy imposed obligations upon the employees of the company. Clause 5 stipulated that:
“Everyone at the company has a legal obligation not to discriminate against or harass for any unlawful reason or bully for any reason, any employee, agent, contract worker, contract supplier or visitor, and specifically you are required not to engage in conduct that amounts to unlawful discrimination, harassment, bullying, or breach of freedom of association laws.”[50]
[50]Exhibit D40, JCB 667.

68The Clause went on to provide that:
“All employees are required to (a) abide by the contents of this Policy (and all other Company Policies) at all times.”[51]
[51]JCB 668.

69It also provided that:
“Company executives, managers and supervisors play a critical role in creating a work environment free from unlawful discrimination, harassment, bullying and breaches of freedom of association.”[52]
[52]JCB 668.

70The Clause further stated that:
“In addition to the above obligations, Company executives, managers and supervisors are required to (a) take proactive steps to identify and manage behaviour that is inconsistent with this policy, and (b) take appropriate action in response to all complaints of unlawful discrimination, harassment, bullying or breach of freedom of association.”[53]
[53]JCB 668.

71Clause 6 stipulated what a person who was subject to bullying or harassment or discrimination could do, including:
“(a) do not ignore circumstances where you are being unlawfully discriminated against, harassed, bullied, or there is a breach of freedom of association, thinking it will go away. Ignoring the behaviour could be taken as tacit approval by the person causing the harassment, discrimination, bullying or breach of freedom of association; (b) Where you feel comfortable, ask the person to stop or make it clear that you find the behaviour offensive or unwelcome. Maybe the person is not aware that his/her behaviour is intimidating or unwelcome and will stop once they are told. It may be useful to speak with your manager or the Company’s Human Resources team to seek guidance on how to do this; and/or (c) raise the issue as a complaint with either your group manager or the company’s human resources team as soon as possible after the incident(s) has occurred.”[54]
[54]JCB 668-669.

72Clause 7 of the Policy addressed what an employee could expect if he or she had a complaint and this included ensuring that complaints should be conducted in a prompt and appropriate manner and as confidentially as possible, with a person alleged to have acted inappropriately generally being informed of the allegations and being afforded the principles of procedural fairness and treated as innocent “until the allegations are proved true”, and that no employee should be victimised or otherwise disadvantaged as a result of making a complaint or acting as a witness to conduct complained of, but that if a complaint was false or exaggerated it would be viewed by the company as a very serious matter and disciplinary action may be taken including dismissal from employment.
73The EA agreement separately provided that:
(a)   The agreement bound the company and each employee employed by the company and covered by the union.[55]
(b)   If the company proposed to change any of the policies applicable to the employees, it would notify each employee and any issues were to be resolved through the dispute resolution clause in the EA.[56]
(c)   The company would ensure compliance with OHS legislation and the company’s safety policy and procedures.[57]
[55]2008 EA clause 4, JCB 544.
[56]2008 EA clause 8.9, JCB 546.
[57]2008 EA clause 17.3, JCB 552. See also clause 17 of the 2011 EA clause 17.3 and 17.6, JCB 749.
74The plaintiff relied on the fact that he was provided the EA, the Handbook and the Policy at about the time the contract of employment was entered. He said that they were part of his induction and ongoing employment.[58] The induction notes provided to the plaintiff reinforced the importance of OHS,[59] hazard control,[60] near miss reports,[61] authorised use of radios,[62] terms and conditions of employment[63] and discrimination and harassment.[64]
[58]T58-59 JCB, Exhibit P2.
[59]Exhibit P2, JCB 501.
[60]Exhibit P2, JCB 503.
[61]Exhibit P2, JCB 509.
[62]Exhibit P2, JCB 510.
[63]Exhibit P2, JCB 512-514.
[64]Exhibit P2, JCB 515-516.
75Ms Annesley observed that the FASOC expressly referred to three documents as constituting the plaintiff’s contract of employment:
(a)   The letter of offer from the defendant [65] which I have proceeded to interpret to mean the letter of confirmation of employment to the plaintiff dated 16 September 2004;[66]
(b)   The Enterprise Agreement of 2002 (and subsequent EBA agreements).[67] The 2002 EA was not included in the Joint Court Book; and
(c)   The 2008 EBA.[68]
[65]FASOC, para 2(a), JCB 28.
[66]Exhibit P1, JCB 489.
[67]FASOC, para 2(a), JCB 28.
[68]FASOC, para 2(b), JCB 29.
76The letter of confirmation of employment specifically advised the plaintiff that “You will be required to comply with all Company policies”[69] and “These documents will be provided to you and you are expected to familiarise yourself with the terms and conditions governing your employment therein.”[70] The letter did not state that the obligation to comply with all company policies was a mutual obligation.
[69]Exhibit P1, JCB 490.
[70]Exhibit P1, JCB 489.
77Under the heading “Award Coverage,” paragraph 5 of the letter stated that, “The terms and conditions that apply to your employment are governed by the P&O Ports Limited West Swanson Terminal Enterprise Agreement 2002, the P&O Ports Limited Melbourne Enterprise Agreement 2002 and the Stevedoring Industry Award 1999.” The defendant submitted that the application of terms and conditions of employment as opposed to an obligation to comply with terms and conditions is relevant. Importantly the letter of confirmation of employment further provided that “Additional information as to company policies and procedures are provided in the P&O Ports Human Resources Handbook as amended from time to time.”[71] The defendant submitted that the reservation to the employer to amend the Human Resources Handbook from time to time argues against an intention to fix mutual obligations that had binding force.
[71]Exhibit P1, JCB 489.
78Ms Annesley submitted that whilst paragraph 3 of the FASOC referred to the employer’s non-delegable duty of care to “properly supervise its servants or agents so as to ensure they complied with their obligations under their contract of employment and any directions, policies and codes of conduct issued by DP World”,[72] it did not identify which policies or codes of conduct it meant and the FASOC was silent on the alleged breach of a policy, or code, or part thereof.

[72]FASOC, para 3(g)(ii), JCB 29.

79Ms Annesley further contended that the alleged breach by the defendant was broadly pleaded at paragraph 6 of the FASOC as that “the injuries were caused by DP World’s breach of the contract of employment” but that this is imprecise in identifying in what way the contract was breached and it was not better or further explained.
80Ms Annesley observed that paragraph 7 of the FASOC referred to “the terms of the employment contract”. The particulars of the terms are said to be encapsulated by clauses 8 and 17 of the EA. Clause 8 of the EA relates the general terms of employment for each employee at the defendant and addresses matters such as employee status, leave entitlements and accrual, hours of work, termination clauses, employee classifications, redundancy arrangements and payments, and other such matters[73] and could have no bearing on the plaintiff’s claim for bullying or harassment policies, or to the operation of the matrix.
[73]JCB 545-547.
81Clause 17 of the EA concerns safety in general terms. It refers to safety objectives, consultation processes involving health and safety representatives, compliance with OHS legislation generally, and training and expressed in such broad terms as they are could not be relevant to the plaintiff’s claim. or impose contractual obligations. Clause 17 contains no reference at all to bullying or harassment policies.
82In light of these shortcomings the defendant submitted that the claim for breach of contract should fail. The defendant additionally relied on other matters of evidence that arose in the conduct of the trial as obviating against the express incorporation of the policies and industrial agreements and the Handbook.
The course of the evidence at trial relevant to contract
83It was during the cross-examination of Ms Pitt, that Mr Morfuni introduced the 2003 P&O Bullying Handbook. Ms Annesley took issue with the methodology and lack of evidentiary provenance of its tender but apprehended, correctly as events unfolded, that her opponent was contending that the Handbook formed part of the plaintiff’s employment contract.
84Ms Annesley submitted that the FASOC did not refer to the Handbook at all, and that neither it, nor its contents, were put to the plaintiff in the course of examination in chief. The Handbook was not mentioned in opening by Mr Morfuni. It was not introduced in evidence until after the plaintiff’s case had closed and in the course of cross-examination of Ms Pitt. The Handbook was a defence document. Ms Annesley submitted that these deficiencies were not mere matters of form but rather of substance and that was sufficiently evident by comparison to decided cases in which like documents were relied upon by a plaintiff.

85In Romero vFarstad,[74] for example, the pleading expressly adopted the Harassment and Discrimination Policy as comprising a condition of the plaintiff’s employment contract and, moreover, the plaintiff’s pleading alleged specific provisions that had been breached by the defendant.
[74]Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 [7].
86Ms Annesley pointed out that the plaintiff did not testify if he was aware of the Handbook or if he regarded himself bound by any provision within it, a fact of distinguishment with, for example, the decision in Goldman Sachs JB Were Services Pty Ltd vNikolich,[75] where the plaintiff had seen the relevant policy document, signed an acknowledgment that he had read it, and signed documents and forms contained within it.
[75]Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 [120] (‘Nikolich’).
Legal Principles
87In considering whether the policies of organisations become terms of contracts of employment the test to be applied is an objective one. The Court asks whether a reasonable person in the position of the employee would believe that a policy was part of the contract of his or her employment. In considering that question, context is relevant. The language of the policy and whether it is merely aspirational or descriptive on the one hand or expressed in terms of contractual obligation on the other is relevant. Whether the language is promissory or purely informative is also relevant. That a policy is provided at or about the time the contract of employment is entered is of importance. The language of the policy must identify the obligation with clarity. Whether or not a particular term forms a contractual obligation turns on the intent of the contracting parties, as objectively conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened.[76]
[76]See Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120, Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889; Yousif v Commonwealth Bank of Australia [2010] FCAFC 8; (2010) 193 IR 212.
88Whether an employer’s workplace policies will be incorporated into an employee’s contract of employment is not always obvious. The answer to the question is not referable to a single and binding authority. The question has often enough proved vexed and the answer, as often as not, factually driven. There are, arguments supported by Commonwealth and Victorian authorities that recognise that in some cases, all or some clauses in policy documents do have contractual force, whereas some authorities have determined the question wholly to the contrary. It will depend upon the parties’ intentions objectively ascertained but with the starting point for reaching a determination on the question being the express language of the contract. In having arrived at my finding, I have considered the various decisions relied on by the parties and sought to apply the ratio extracted from them to the facts of the proceeding.
89I am satisfied that the following principles fairly reflect the position at law.
90First, a policy may be contractually binding if incorporated by reference in the employment contract (express reference or incorporation) or as an implied term of the contract (implied incorporation).
91Second, a policy can be expressly excluded from or included in an employment contract by a statement in the policy[77] or possibly the contract to that effect. For example, the relevant policies in Yousif v Commonwealth Bank of Australia[78] had no contractual force because the introduction to the policy manual stated that “the manual is not in any way incorporated as part of any industrial award or agreement entered into by the Bank, nor does it form any part of any employee’s contract of employment”.[79]
[77] Yousif v Commonwealth Bank of Australia (No 2) [2009] FCA 656.
[78] [2009] FCA 656.
[79]Ibid [96] See also: Barker v Commonwealth Bank of Australia (2012) 296 ALR 706.
92Third, since Riverwood, three key factors have emerged from the principal authorities. The ﬁrst of these, is the language of a policy clause in the contract. A policy clause which requires the employee to “abide by” or “comply with” policies will usually mean that the employee is bound by obligations in the policies but is also entitled to receive the beneﬁts contained in those policies. Although not expressed as being subject to the policy, the employer has expressed contractual obligations by virtue of the employer offering, and the employee accepting, express contractual rights. The second consideration is the language of the policy sought to be relied on. An objective test is applied – would a reasonable person in the position of the promisee conclude that, having regard to the surrounding circumstances, the promisor intended to be contractually bound by the statements contained in the policy? Context is critical. An employer “commitment” to a workplace issue may, or may not, be expressly incorporated into the contract depending on the circumstances. Descriptive language in the form of direction or advice and statements which reveal more than anything else, the employer’s aspirations on a particular topic are not generally contractual. While a signed policy is a surrounding circumstance which is suggestive, but not conclusive of a contractual purpose and can conﬁrm that the employee has read and understood the policy, an unsigned policy does not reverse a ﬁnding that the employer intended to be contractually bound. If the employee receives the policy after signing the contract, the employee’s inability to knowingly commit to the policy terms suggests that the parties did not intend to be contractually bound.[80]
[80] McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at [67] (Buchanan J); Nikolich (2007) 163 FCR 62 at 247 (Wilcox J).

Finding on Contract Claim
93I am satisfied that the plaintiff’s claim for breach of contract must fail. Whilst the language of the Handbook contains some quasi-contractual statements, it also presents as a booklet of company information, with aspirational mission statements,[81] included a history of the company along with photographs and maps of operational locations in Australia and New Zealand,[82] and an invitation to contribute to ideas and new content via its Portal site.[83] It was not a document which was signed by the plaintiff.[84] The contents as they relate to safety and harassment and bullying are not expressed as prescriptive but would require the recipient to know much more and find much more to ascertain their rights. The Handbook is a used and instructive guide to the principles that the company strives to achieve consistent with and in furtherance of legal obligations imposed by State and Commonwealth laws. Indeed, the Handbook was expressed as having been “designed as a reference document to answer questions about our Company, and the various Policies and Procedures which underpin the way we operate the business and manage our human resources”. That is not the language of offer and acceptance.
[81]Exhibit P53, P&O Ports Human Resources Handbook, Introduction, pages 1-2.
[82]Exhibit P53, P&O Ports Human Resources Handbook, Company History, pages 5-7.
[83]Exhibit P53, P&O Ports Human Resources Handbook, More Information, page 36.
[84]Nikolich [2007] FCAFC 120 [120]; Lloyd v Healthscope Operations Pty Ltd [2020] VCC 2032 [334].
94The evidence of whether the plaintiff received a copy of the Handbook was muddled and certainly it was not clear when or if he received the copy on which Ms Pitt was cross-examined. The defendant also contended that it is more likely than not that if the plaintiff received it, he would have received it subsequent to having signed his employment contract on 21 September 2004.[85] If so, that fact would tend against a finding that the document was intended to have contractual force.
[85]Exhibit P51, Offer of Employment, signed by Stevens on 21 September 2004, JCB 491.
95It is a reasonable assumption on which to proceed that the company reserved to itself the right to update or amend the Handbook at least by reason of the fact that there would appear to have been iterations of it over the course of the plaintiff’s employment. The capacity of the employer to do so unilaterally is a factor that militates against the handbook containing mutually binding contractual obligations.

96Not only did the defendant submit that the Handbook is not incorporated into the contract it also argued that the plaintiff’s claim must fail on the grounds of “remoteness”.[86] I agree with the defendant’s submission. Because the pleadings do not refer to the document at all and do not identify any particular breach, it is impossible to conclude that the defendant would have contemplated that injury could flow from some breach of it.
[86]Lloyd v Healthscope Operations Pty Ltd [2020] VCC 2032 [419]-[425].

The Enterprise Agreement
97It was not necessary to hear argument on the question whether the EA was a term of the plaintiff’s employment because it was admitted as such by the defendant.

The Policy
98For reasons not dissimilar to those I have already canvassed I am not satisfied that the Policy is contractual. It is appropriately aspirational in its underling purposes and intended and expressed as being informative and educative. Indeed, in terms of complaint mechanisms in which an employee may feel aggrieved the Policy (clause 7) explains its “intention” in relation to procedures it will follow in addressing all complaints. Moreover, the Policy by clause 9 expressly provides that it merely “summarises some of the rights and obligations which are created by the legislation and is not intended to go beyond the legislation”. It is difficult to see how one might enforce “summaries” or “aspirations” or seek, for example, any declaratory or final relief by way of a suit for damages for breach of contract of the same.
99Had I been persuaded that Handbook or the Policy were contract terms and that there had been breaches of them I would not have been satisfied that the damage relied on as flowing from the breaches should be regarded as being within the reasonable contemplation of the parties at the time the contract was entered into.
100Certainly, I would not regard a breach of the EA as conferring a right for damages at law.
101The degree of probability of the occurrence of the loss or damage claimed by way of breach of contract has been variously described in the authorities. In Hadley v Baxendale[87] the following was said:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”[88]
[87] (1854) 9 Ex 341.
[88] Ibid 354.

102Subsequently in Commonwealth v Aman Aviation Pty Ltd[89] (‘Aman Aviation’) it was recognised that the two limbs referred to Hadley v Baxendale, and their application may depend on the extent of relevant knowledge possessed by a defendant in a particular case.
[89] (1991) 174 CLR 64, 92.
103When the question is posed whether on the information available to the defendant when the contract with the plaintiff was made would the defendant have realised that it was sufficiently likely that the plaintiff would suffer psychological injury as a result of the breaches of documents relied on, such that it would be appropriate to determine that the plaintiff’s losses flowed naturally from such breach or breaches or was of a kind of damage that should have been within the defendant’s contemplation, then I am satisfied that the answer is, no.
104The plaintiff had worked for the defendant for several years and had managed his employment including as will be seen, navigating safety related concerns and concerns about potential discriminatory behaviour directed at the male workforce by comparison to female workers and matters and including matters of disquiet separate to the issues that have occupied this proceeding. He navigated his work environment without putting the defendant on alert to any vulnerability such as to indicate that he was at risk of psychiatric injury that might flow naturally for any breaches of safety requirements or discrimination policies.
105I would not have been satisfied that it should be thought to have been in the reasonable contemplation of the defendant that the articulated breaches of the documents relied upon by the plaintiff was sufficiently likely to result in psychological injury to him. That applies with equal application to the EA.
106Whilst I accept that the purpose underpinning a bullying policy is an adjunct mechanism directed at the provision of a workplace free from harassment and intimidation, and therefore, has a more identifiable connection with the emotional and mental well-being of an employee, the matter nonetheless reverts to whether the identifiable breaches would, based on the degree of relevant knowledge possessed by the defendant in this case, result in it being properly concluded that psychological damage would flow from such breach or breaches. Again, my answer is, no.
107Bearing in mind that the plaintiff bears the onus of proving that his claimed losses are not too remote in accordance with Aman Aviation, I would not have been satisfied he discharged his onus that such loss and damage was not too remote.

The Claims in negligence
Bullying
108In his FASOC the plaintiff alleges that in the course of his employment from approximately 2007 to 2012 he suffered injury due to the stresses and strains of his employment when he was bullied and harassed and subjected to ostracisms within the workplace by co-workers and management.[90] The particulars of “bullying and harassment” sub-joined to that allegation were:
[90]FASOC, paragraph 4(a) to (v).
(a)   The words “vote for me, I’m rat dog” were written next to his name on the Union Delegate Nomination list in 2007.
(b)   On or about 21 February 2008 the plaintiff was verbally abused by Gary Ellis in Ellis’s office when Ellis yelled at the plaintiff for lodging hazard reports, saying “I’m sick of you and your fucking hazards, brake pedal rubbers are not a hazard report!”
(c)   From about 2008, after he was appointed Health and Safety Representative (“HSR”) the plaintiff was frequently verbally abused and harassed by other stevedores for lodging safety reports, even though this was part of the plaintiff’s role as permanent HSR for Guaranteed Wage Earners (“GWEs”), including:
(i)On several occasions in about 2008 after he became HSR, hazard reports that had been completed by the plaintiff and which were meant to be anonymous were taken out of the box (located in the amenities building) in which the plaintiff was required to place them, and placed on a notice board also in the amenities building so that they were visible to everyone and everyone would know that it was the plaintiff who had completed the reports;
(ii)Approximately a year after the plaintiff became a permanent HSR, a road foreman, by the name of “PK”, abused the plaintiff in relation to taking straddles to maintenance. The road foreman was required to pick up the plaintiff from maintenance. He said to the plaintiff words to the effect of “I’m sick of picking you up from maintenance, every time I go to have something to eat I’ve got to come and pick you up, I can’t have a fucking smoko!”
(iii)The plaintiff called over the radio for some assistance to lock the over-height on his straddle whilst he was located at the end of the dock, which area is colloquially known as “the knuckle”. Kevin Goss said over the radio in response words to the effect of “I wish someone would give him the knuckle”. Radio communications were open to all of the defendant’s employees on wharf including management;
(iv)Kevin Goss also said over the radio “I wish someone would smash him!” when the plaintiff had reported that a barricade was smashed;
(v)On an occasion in 2008 or 2009, Paul Pascu, the HSR for permanent crane drivers, was meant to inspect a straddle as was a responsibility of an HSR, but he did not perform the job, and went home instead. The plaintiff was then asked by Paul Mason, head of straddle maintenance, to bring the straddle back into service to which the plaintiff asked via email whether Paul Pascu had taken it to maintenance. Paul Mason said that Pascu had not done it. Pascu was apparently made aware of the email the plaintiff had sent and abused the plaintiff, saying words to the effect of “Don’t put my name in a fucking email – I’ll fucking kill you, you cunt!”

(d) On or about 14 December 2008, the plaintiff reported that there was no foreman to give directions on grid 98 and 99 as was required by company policy. The foreman who was meant to be there was Mick Crompton. As a result of the radio report the plaintiff was verbally abused by foreman Mick Crompton:
(i)Crompton contacted the plaintiff over the radio and asked him to meet Crompton on his next break;
(ii)Crompton said, “I will be waiting for you in the canteen”, over the radio, which could be heard by everyone with a radio on the wharf;
(iii)On his break, the plaintiff was walking towards the amenities to meet Crompton, when he saw Crompton standing on the landing at the top of some stairs near the men’s locker room, surrounded by a group of other men;
(iv)Crompton looked down on the plaintiff from the landing and verbally abused the plaintiff saying “If you have a fucking problem with a foreman not being down there, don’t say it over the fucking radio! I have been out fucking lashing in the rain! I’m sick of you being a fucking dick on the radio! You’re making a dick of yourself! No one gives a fuck about you, I can tell you right now! Saying it on the radio – you can fucking come and see that we were fucking there! You think you’re so good, why don’t you do every fucking job in the fucking place!”
(v)The stevedores present were Robert Chappel, Michael Grech, Sinan Ozbay, Frank Farrugia, Michael Bracken, Scott Warren, Murray Costello and Alan McKinnon.
(vi)None of the witnesses did anything to stop Crompton. The plaintiff thought a fight would break out if he stayed, so he said to Crompton “just do your job!” and walked away. (“The Mick Crompton incident”).

(e)   Following a subsequent investigation of the Mick Crompton incident by Gary Ellis, the plaintiff was treated unreasonably by fellow stevedores, including several of the witnesses to the Mick Crompton incident, who were interviewed by Ellis and who all denied that Crompton had abused the plaintiff, which was an example of the culture of silence that operated on the wharf;
(f)    Following the Mick Crompton incident, the plaintiff was repeatedly and continuously called names or abused by foremen and supervisors including being called a rat or rat dog on a regular basis. Such name-calling and abuse was regularly communicated over radio where all workers could hear it. Perpetrators included “Diego” and Mick Bracken but would also be said to him in passing in communal areas to the point that the plaintiff avoided eating in the tea room;
(g)   In about 2008 the plaintiff was further harassed after he made a hazard report when a twin-cab ute with about 10 people on it drove in between his straddle and some shipping containers in circumstances where such driving was dangerous and a serious breach of safety procedures, and as a result of which the plaintiff had to slam on the straddle brakes, which could have tipped over the straddle:
(i)Shift Supervisor Kevin Goss was found to be driving the ute;
(ii)Goss received a written warning;
(iii)Goss was angry at the plaintiff’s report of the incident and confronted the plaintiff and abused him, saying in an angry manner “you fucking cunt, do not ever talk to me again” and “fuck off dog!”;
(iv)The plaintiff was afraid because reports were meant to be confidential. (“The Kevin Goss incident”);

(h) The plaintiff contacted David Schliebs, the deputy secretary of the Maritime Union of Australia, and reported the ongoing abuse following the Mick Crompton incident. David Schliebs told the plaintiff that he told Kevin Goss to ensure that the plaintiff was given a fair go. David Schliebs reported back to the plaintiff that Goss had told Schliebs “I am not gonna do it. He’s a fuckin dog”. Bob Chappel had also indicated to Schliebs that he was not willing to give the plaintiff a fair go.
(i) After the Kevin Goss incident, Goss further bullied and harassed and ostracised the plaintiff as follows:
(i)Goss as shift supervisor was responsible for allocating duties during shifts;
(ii)After the plaintiff reported Goss, Goss stopped rostering the plaintiff to work on ships, and rostered him instead onto the roads, which was less advantageous work and involved the plaintiff not being given jobs that were likely to be finished early that allowed the workers to finish work early for a full day’s pay;
(iii)In relation to the matrix, at one of the grievance meetings with Ellis and Kerr, David Schliebs, MUA Deputy Secretary, mentioned that the matrix does not really work for James given his role reporting hazards and the issues people have with him as a result.

(j)    In or about 2008, the plaintiff became aware that Diego, who was working light duties in the office, had been given access to some of the hazard reports that the plaintiff, as Health and Safety Representative, had made. Diego called the plaintiff “Harassment Harassment” and said that “James is lagging on everyone” and “you should see the size of his file!” This was said by Diego over the radio where every worker and supervisor was able to hear it. The plaintiff verbally reported this to Human Resources during his shift, however nothing was done.
(k)   In about mid-2009 offensive graffiti about the plaintiff was written in the men’s toilets. The graffiti was on the walls of the cubicles and contained the plaintiff’s name surrounded by comments such as “Rat Dog”, “Dobber”, “Give-up”, a tombstone drawn next to the plaintiff’s name with “RIP” written next to it, and in the next cubicle “James Stevens is a cunt”;
(l)    On or about 14 September 2009 Gary Ellis arrived in “the graveyard” area where the plaintiff was rostered to work, and verbally abused the plaintiff:
(i)The plaintiff’s straddle was in need of maintenance and would not start;
(ii)Ellis appeared at the bottom of the plaintiff’s straddle and screamed to the plaintiff “Your job is to do fucking boxes, your job is not to fuck around in the graveyard. Stop fucking around!”
(iii)Having been told by nearby maintenance staff following Ellis’s abuse “that was a bit rough”, the plaintiff reported Ellis’s abuse to Leissa Pitt (Health and Safety manager);
(iv)After the end of his shift, Ellis asked to see the plaintiff in his office and again yelled at the plaintiff. He said words to the effect of “You’re kidding me, don’t think I was out there to see you, I’ve got better things to do than to come and see you. We were watching you on the cameras!”

(m)     The plaintiff had ongoing difficulties with Gary Ellis, who continued to speak to the plaintiff in derogatory terms and was dismissive of all of the safety concerns raised by the plaintiff. For example, the hazard reports the plaintiff was putting in, which were meant to be passed from Gary Ellis to Leissa Pitt, were not being passed on. This resulted in Leissa Pitt asking the plaintiff to email them to her directly. When Gary Ellis found out this was happening he was yelling at Leissa Pitt and the plaintiff. This occurred on a constant basis through 2008 and 2009.
(n)   In January 2010 the plaintiff was further ostracised when he learned that Jason Clarke, Equipment Controller (“EC”), was deliberately not answering his calls over the radio;
(o)   In or about February 2010, Jason Clarke abused the plaintiff over the radio for making a report to Gary Ellis about the pedestrian lights not working:
(i)Clarke called the plaintiff over the radio a “fucking dog” and said “no one fucking cares about you” and other verbal attacks, the precise words of which the plaintiff cannot recall;
(ii)The plaintiff asked Gary Ellis to listen to the conversation, as all radio communication is recorded;
(iii)Gary Ellis denied that the conversation was recorded (“the Clarke radio incident”).

(p) On about 30 March 2010, Jason Clarke and Kevin Goss bullied and verbally abused the plaintiff in the canteen as a result of the Clarke radio incident as follows:
(i)Clarke came towards the plaintiff and said in an angry fashion “you fucking dog, what’s with asking Gary Ellis to listen to the recordings? I should smash you, you fucking cunt!”;
(ii)Clarke was red in the face and spitting saliva as he addressed the plaintiff;
(iii)Kevin Goss was also present and said to Clarke “go on, fucking smash him, I wish someone would!”
(iv)After this, the plaintiff was fearful of further confrontations or violence and avoided the canteen. (“The canteen incident”)

(q)   The bullying of the plaintiff continued in the form of snide comments, ostracisms and verbal abuse from various co-workers and management throughout 2010 and 2011, which occurred on an almost daily basis and which was allowed to occur due to the culture of silence that persisted on the wharf, and which were so frequent that the plaintiff has no recollection of the precise words used.
(r)   On 2 December 2010 the plaintiff found faeces in his gumboots in the change room of the wash area (“the faeces in the gumboots”).
(s)   On 3 December 2010 the plaintiff was ridiculed and treated unreasonably after he reported the faeces in the gumboots to Gary Ellis, when Ellis started laughing at the plaintiff and said “lucky it wasn’t your helmet!”
(t)    After the plaintiff returned to work following his first WorkCover claim he was located in the wash area. He asked to use a cupboard to store his belongings and was told he could put a lock on it and use it. Despite this, the plaintiff would regularly have this cupboard broken into and his belongings either put in the bin or thrown around the room. This happened on an ongoing basis until he ceased work.
(u)   On about 3 January 2012, the plaintiff was verbally abused by Shift Supervisor, Will Goulding:
(i)Goulding sent for the plaintiff to be brought to his office;
(ii)Upon arrival, Goulding yelled at the plaintiff “stop fuck arseing around! You are going to get hit over the head for making safety reports; these cunts will take a bat out and have a swing at you!”
(iii)Thereafter the plaintiff feared imminent violence by fellow stevedores.

(v) The plaintiff was further ostracised and treated less favourably than other workers when he was denied promotion from Guaranteed Wage Earner (“GWE”) to Variable Salary Employee (“VSE”), the latter of which involved better hours, more superannuation, and other benefits, in circumstances where Gary Ellis had told the plaintiff whilst the plaintiff was in his office words to the effect of “I will make sure you are the longest serving GWE”.
(w) Requiring the plaintiff to operate defective machinery:
(i)In or about January 2012 the plaintiff was required by Goulding to operate a straddle that was defective and in an unsafe condition;
(ii)In or about May 2012 the plaintiff was required to operate a faulty straddle by Equipment Controller McKay after the plaintiff had reported to her that the machine had a loose steering post. With knowledge that the plaintiff had suffered stress as a consequence of the harassment and bullying that required him to take sick leave until December 2011, requiring the plaintiff to perform similar duties and failed to take any steps to ensure that the plaintiff was not subjected to conduct by other employees similar to that which had caused him to take time off work.

430In furtherance of the plaintiff’s contention that the assessment of the plaintiff’s workplace performance and attitude operated to his disadvantage, the plaintiff referred to Mr Ellis, who conceded in the course of cross-examination that such a factor “may have affected votes” of the assessors and that it “might have” been feasible that one or other persons assessing him regarding workplace attitude and performance got it wrong if they took the view that he was too conscientious about safety and it adversely affected output.[427] The plaintiff contended that despite this acknowledgement by Mr Ellis, the defendant was derelict in not obtaining feedback from assessors about the plaintiff and failed in future promotions to ensure that assessors would assess him fairly. In my judgment, if Mr Ellis was derelict, he was entitled to be so without legal liability attaching to him in negligence for the occasioning of mental harm.
[427]T1561, L5-13.
431The plaintiff contended that the defendant had a duty to investigate other methods that might result in a fairer assessment of him in order to ensure that he had an equal chance at promotion as was afforded other employees. It may have been open to the employer to have divined a different methodology, but none was proposed other than a direct interference by management in the process of assessment under a matrix that applied nationally and had the imprimatur of the MUA or by the selection of personnel who presumably did not know the plaintiff. In any event, I do not accept that such an inchoate duty of care exists in law to afford a process in a promotions’ matrix to prevent the occasioning of mental harm at the very least in the absence of evident signs of illness.
432The plaintiff was also critical that Mr Ellis on at least one occasion was both a person involved in assessing the plaintiff under the matrix and in hearing the plaintiff’s grievance in relation to that failure to be promoted.[428] In cross-examination, when asked whether he had heard grievances in which he had been an assessor, Mr Ellis said that this “may well have happened”.[429] The defendant submitted that this demonstrated a lack of fairness and independence in the grievance-review process established under the matrix.
[428]Exhibit P15, JCB 523.
[429]T1546, L16.
433The plaintiff relied on the fact that EA required Mr Ellis and Ms Kerr in considering the plaintiff’s grievance, to “reconsider all aspects of the case”.[430] The plaintiff submitted that what Mr Ellis and Ms Kerr did in relation to the grievances lodged by the plaintiff could not constitute “reconsidering” all aspects of the case and did not afford him a genuine opportunity to have his applications reconsidered. Ms Kerr’s evidence was that they just checked the maths to ensure the figures had been added up correctly but did not endeavour to discern the reasons behind the scores.[431] Similarly, Mr Ellis’s evidence was that management did not ever revert to the assessors to obtain their feedback on the reason why the plaintiff was given low scores.[432] Of course it should be remembered that if there was a lack of merits review by way of a grievance process that the deficiency appeared to have applied generally and does not lead me towards a finding that the procedures were targeted conduct directed at the plaintiff.
[430]Exhibit P52, EA clause 23.
[431]T1294, L4-18.
[432]T1633, L29.
434These complaints about the grievance procedures and the matrix more generally were very substantially industrial complaints that could have been the subject of dispute notifications in Fair Work Australia by the plaintiff or through the offices of the MUA. The fact, if true, that an employee was being treated unfairly under an industrial instrument that regulated the worksite is not co-extensively a particular of a breach of duty in negligence at common law for the onset or development of mental harm.
435The plaintiff claimed that nepotism affected the assessment process, in that Phil Butteriss was the brother of one of the people who was promoted, Ian Butteriss,[433] and this also demonstrated the inherent unfairness of the matrix system. Once again, the asserted procedural shortcomings are not in my judgment evidence of a system designed and operated to disadvantage the plaintiff and cannot in that sense be found to have been a system of work that was used to humiliate or victimise or discriminate against the plaintiff.
[433]T80.
436In seeking to answer the plaintiff’s criticisms of the matrix process the defendant’s submissions were ultimately reduced to a series of relatively straightforward contentions. The first of them was that even had the plaintiff’s assessments on the two criteria of workplace performance and attitude been marked otherwise, that is to say, had the plaintiff received the highest rating for each of them, nonetheless he would not have been successful for any of the positions about which he lodged a grievance and would not have been in line among his peers to have obtained the relevant upgrade or position. That proposition was soundly based in the evidence presented by the defendant.
437Second, the defendant contended that no duty of care as propounded by the plaintiff exists in negligence or in contract, irrespective of the criticism of the plaintiff not having identified if the duty proposed was a duty at common law in negligence or if it derived as an implied contractual obligation in the application of the matrix or under the EA made between the MUA and the employer.
438The defendant submitted that it does not owe a duty of care to the plaintiff to have a wholly meritocratic process for promotions. The defendant submitted that “Companies are able to hire and promote staff as they see fit, be that based on their own views on “cultural fit” criteria or family businesses, for example, may choose to hire or promote family members over others.” That submission must of course be read as subservient to laws that, for example, prohibit discrimination in employment based on a protected attribute.
439Third, the defendant submitted that it was entirely speculative on the plaintiff’s part of the basis upon which the matrix assessors voted him and if they or any of them unfairly criticised him. Individual assessors comprised a maximum of 20 per cent of the total marks achievable. Therefore, as the defendant contended, if only one or two assessors targeted the plaintiff (such as Kevin Goss and Bob Chappel) they would make up 4 per cent of his mark.
440The defendant submitted that in any case, the plaintiff admitted that he was indeed promoted to VSE when the enterprise agreement reclassified employees and removed the GWE position.[434]
[434]T166, L13-23.

Finding
441I am not unsympathetic to the plaintiff’s complaint that he was placed in a difficult position by Mr Ellis and Ms Kerr because on the one hand they told him that it was his job to report safety issues, yet on the other they maintained that there was nothing they felt they could or would do to dispel any perception held by the foremen that the plaintiff was using safety issues to get out of work and mark him down in the assessment.
442However, I am not satisfied that the law recognises any of the broadly expressed duties of care relied on by the plaintiff despite me acknowledging the plaintiff’s frustration at his circumstances. I am not satisfied that it was reasonable for the employer to have interfered in the results obtained by the plaintiff on the two criteria that called for a personal assessment of him. I am not satisfied that even if such duty existed, that any of the steps that the plaintiff alleged the defendant should have engaged in would have led to a different result in the two categories unless the defendant in each case, and on every occasion the plaintiff together with all other employees were assessed in accordance with the matrix, dictated an outcome for the plaintiff to the assessors. Such an exercise would have defeated the value thought to be derived from the two categories that were intended to capture discretionary considerations about the approach of a worker to them. Even had, for the sake of argument, the defendant managers taken overt steps to have displaced any misapprehensions that may have existed because of unfavourable perceptions of how the plaintiff dealt with safety issues, that is not to exclude other altitudinal considerations that other assessors might well otherwise have applied from time to time in the provision of a score for the plaintiff with such factors not capable of being known by Mr Ellis or Ms Kerr.
443Presumably the defendant might have considered excising the plaintiff entirely from assessment for promotions and grievances under the matrix, and assessing him by some such other means, although what that might have looked like or have operated outside the terms of the industrial arrangements operative on the site was not explained.
444I am not satisfied that a duty resided with the defendant to modify or make a special accommodation for the plaintiff outside the arrangement negotiated with the MUA and otherwise applicable to the balance of the workforce.
445While the law accepts and recognises that the duty owed by an employer is a personal duty to each employee, the response required of a reasonable employer is not by the same measure only an individual duty. The inquiry in the formulation and operation of the duty calls for a prospective inquiry to provide a safe system of work that is capable of extending to all comparable employees in order to address a foreseeable risk of psychiatric illness in those persons where it arises. A system of work that had relieved the plaintiff from the matrix or that required the defendant to interfere in the manner of an assessment of workplace attitude and of performance of the plaintiff by assessors would have obvious and adverse implications for the management of the workforce generally.
446The plaintiff was of course at liberty to seek intervention and representations by the MUA which he did when attending a meeting with management and David Schliebs or of the MUA utilising dispute notification procedures. What I do not accept is that the defendant was under a duty of care at common law in the provision of a safe workplace to regard an employee to be at risk of mental injury as a result of part of an assessment for promotion utilising a process agreed and arrived at by management and union. I do not regard that such a duty of care arose because of the plaintiff’s expression of concern at being discriminated in promotion or in the determination of grievances because of an adverse view adopted in response to a robust approach to safety. I do not accept that the defendant was subject to the duty proposed by the plaintiff to take the steps and make the inquiries contended for in considering of a promotions’ grievance.
447I do not accept that even had the duty as formulated by the plaintiff arisen that the defendant should be treated as having been on notice of a risk of injury to the plaintiff’s mental state. I would not have been satisfied that the defendant was alert to a risk of mental harm being caused to the plaintiff because of the failure to succeed in promotions or in the successful outcome of his grievances under the matrix or by reason of any conduct in conflict with the EA. I am not satisfied that the evidence of Mr Ellis, who said that the plaintiff presented at the end of some meetings as despondent, or as Ms Pitt said of the plaintiff, that he invariably presented as an emotional man, is a reliable or reasonable basis to impute a sufficiency or knowledge of a risk of harm to have thereby enlivened a duty of care.
448I am satisfied that the plaintiff’s fundamental misunderstanding of how the matrix system worked, and how safety matters were considered and weighted within it, was a constant source of his frustration, but the misunderstanding was through no evident fault of the defendant that I have identified and certainly not a fault that amounts to a breach of duty at law. There was produced many emails, audio recordings and file notes that pay testament to repeated efforts by management to help the plaintiff understand and encourage him to improve. The defendant submitted that these efforts which were, on any view, objectively reasonable fell on deaf ears. I cannot help but agree.
449I do note however that the significance of the fact relied on by the defendant that the plaintiff was eventually promoted to VSE should be considered bearing in mind that this was inevitable when the EA removed the GWE classification.

The Defendant’s knowledge of the Plaintiff’s mental health
450Following the boots incident in December 2010 the plaintiff took his annual holidays in December 2010.[435] He then returned to work. The plaintiff testified that he was taken to hospital by ambulance in March 2011,[436] however, the medical evidence is that this occurred in June 2011.[437] The plaintiff was experiencing chest pains at his doctor’s rooms and was conveyed to hospital.
[435]T150.
[436]T153, L4-29. The reference to 2011 is earlier at T152, L1.
[437]Exhibit D76, Hoppers Crossing Medical Centre’s progress note dated 9 June 2011, JCB 952.
451The plaintiff lodged a Workers Injury Claim Form on or about 22 August 2011.[438] That claim was not a claim for “bullying” or “harassment”. It contained no references at all to the bullying or harassment matters pleaded. The claim form asked: What happened and how were you injured? The plaintiff wrote:
“Stressed at work,
Stressed at work, no job rotation, no variation in work, only work road in a straddle.”[439]
[438]Exhibit P55, JCB 127-130.
[439]Exhibit P55, JCB 127.

452Dr Ghani, the plaintiff’s treating doctor’s report of 5 September 2011 did not refer to any of the alleged incidents pleaded in the FASOC but instead to safety fears, that no one was listening to him about safety matters, or that there was an accident waiting to happen.[440]
[440]Exhibit P71, Report of Dr Ghani dated 5 September 2011, JCB 154.
453The plaintiff was first prescribed with anti-anxiety medication on 9 August 2011.
454The plaintiff returned to work on 22 December 2011.[441] He was on light duties (initially said to be a while[442] and subsequently said it was a week)[443] and then returned to full-time work.[444] The plaintiff gave evidence that he told Wade Chapman when he returned to work in December 2011:
“I felt happy enough to do all my jobs again which took a period of time and some re-training because I was gone for a period of time [August to December 2011]”.[445]
[441]T155, L5-27.
[442]T156, L7-14.
[443]T687, L23-T688, L7.
[444]T664, L5-10 (plaintiff).
[445]T664, L11-31.

455Upon his return to work after receiving clearance from his doctor,[446] the plaintiff said that he was in a good state of mind[447] and in his words: “I felt happy again. I thought I was doing all right, I thought I was quite happy to try and go back and do my job”.[448] The plaintiff gave evidence he “loved” his actual work and he had no difficulty doing his duties.[449]
[446]T663, L28-31 (plaintiff).
[447]T688, L16-21.
[448]T663, L28 – T663, L4.
[449]T166, L24 – T167, L1.
456The plaintiff went off work in June 2012 and never returned.[450]
[450]T160, L24 – T161, L6.
457There was no precipitous incident to explain why the plaintiff ceased employment in June 2012. The matter involving Goulding about which the plaintiff makes complaint in the proceeding occurred in January 2012. What the plaintiff did say in evidence in chief as to why he stopped work in June 2012 was, “I'm being pressured to operate machines, I would ask for a machine to go for maintenance to have a look at it and I would be called up to see the supervisor over taking that machine to when maintenance kept that machine because they deemed it as unsafe[451]”.
[451] T161, L1-6.
458The plaintiff lodged a second Workers Injury Claim Form on 26 June 2012.[452]
[452]Exhibits P55 and D8, JCB 131-4.
459I accept that the defendant was entitled to believe that whatever the plaintiff’s concerns, they had resolved following his successful return to full-time work in December 2011 as, in the plaintiff’s own words, “I got to the stage where I thought I was – I could drive a straddle again, I could do everything again. I felt happy enough to do all my jobs again”.[453]
[453]T664, L11-31.
460The plaintiff imputed knowledge to the defendant of the plaintiff’s health because of an email dated 31 March 2010.[454] However, that was a bland email notifying sick leave. The certificate for sick leave was not tendered. The period covered the Easter break from Wednesday 31 March to Easter Sunday 4 April 2010. The plaintiff did not give any oral evidence of taking sick leave at that time, and nothing concerning that period of time was put to Ms Kerr or Ms Pitt by way of cross-examination. The plaintiff said he told management, Mr Wade amongst others, that he was suffering stress. I do not accept the truth of the plaintiff’s evidence that he gave any such account. All I am satisfied of is that Mr Ellis, Ms Kerr, Ms Pitt and Ms Grant knew that the plaintiff had attended his doctor on the afternoon of 31 March 2010 and been certified unfit for work until 4 April 2010.[455]
[454]Exhibit P117.
[455]Exhibit P117, Email from Kerr dated 31 March 2010 at 4.58pm.
461I am not of the opinion that an inference ought to be drawn of a knowledge of a risk of mental harm by reason of the email of 31 March 2010 coinciding with the date that the plaintiff emailed Ms Pitt about the canteen incident with Clarke.[456] That email to Ms Pitt made no mention of the plaintiff believing that he was suffering any injury, was feeling unwell, or required sick leave in consequence of the canteen incident. The canteen incident was discussed at a meeting with Kerr and Ellis in May 2010.[457] Neither the plaintiff, Mr Ellis or Ms Kerr gave evidence about the plaintiff informing the defendant that he was suffering any injury, feeling unwell, or had taken/‌would take sick leave in response to it. There is nothing to this effect in the minutes either.[458]
[456]JCB 682-3.
[457]Exhibit P40, JCB 687.
[458]Exhibit P40, JCB 687.
462The plaintiff was cross-examined about his attendance on the doctor on 31 March but appeared to just confirm what the progress note addressed that was in relation to safety and the plaintiff’s role as an HSR and the way he believed management was inadequately addressing safety and causing him to experience sleep and concentration difficulties.[459] Dr Ghani’s note of 31 March 2010 included “Lots of issues at work, bullying in context with WorkSafe issues.” In August 2009 another doctor at the plaintiff’s clinic made an entry “Being bullied at work, request for SL” that is, Sick Leave. There is no basis in evidence for me to identify that entry to any matter about which the defendant was on notice about in connection to the plaintiff’s mental wellbeing. The plaintiff saw his doctor on more than half a dozen occasions thereafter and until 5 August 2010 and there is no mention of the plaintiff’s mental health. The plaintiff said that he might not have mentioned his mental health to his doctor.[460]
[459]T675, L14 – T677, L8 (plaintiff). Dr Ghani was asked to clarify the progress note: T810, L17 – T812, L11.
[460]T677, L20-26.
463Apart from being satisfied that the defendant was not on notice by the plaintiff or in consequence of any medical advice of a risk of harm to him, neither am I am satisfied that the defendant was on notice based on the varying accounts of the plaintiff’s witnesses who spoke of perceived “changes” in the plaintiff. They were vague as to content or time.

464The plaintiff retained solicitors in June 2012.[461] A letter from them dated 9 August 2012 to the defendant identified concerns the plaintiff had in relation to safety procedures and the manner in which he perceived he was treated as a result of raising safety issues. None of the bullying incidents now relied upon were raised. Mr Morfuni contended that the letter was not expressed as exhaustive and in fact included a warning that there “may be additional issues of concern that have since arisen that are not listed here”.
[461]T659, L11.

The Plaintiff’s mental state
465Although there is a consensus of medical opinion that the plaintiff has suffered a mental injury that arose in his employment and despite questions of the extent of plaintiff’s current state and prognosis and capacity for work, I am not satisfied that the injury the plaintiff suffered was caused by a relevant breach of duty in negligence by the defendant. As a result, it is unnecessary to address the very substantial amount of medical evidence relied on by the parties for the purpose of an assessment of any sum of general damage or loss of past and future income.

Mrs Stevens
466I will comment only very briefly on the evidence from Mrs Stevens. The reason I need only briefly address her evidence, is that almost entirely her evidence was confined to a description of her husband before the onset of his mental health issues and afterwards. Her account falls away as relevant because of my finding that the plaintiff has not proved that any breach caused his injury. Oddly in the course of her evidence in chief Mrs Stevens was not asked whether her husband had confided any of the allegations of bullying or of discrimination in promotions upon which he bases his claim. It was only in response to some questions by me that Mrs Stevens volunteered having been made aware of matters by her husband.
467Mrs Stevens described her husband as having been a sociable person. She went so far as to describe him as “the life of the party”.[462] Mrs Stevens said that the plaintiff had loved his job with the defendant[463] and would have liked to work there until he retired. Mrs Stevens described having observed a gradual decline in her husband’s condition around 2008 to 2009.[464] Although he continued to attend events his interest level started to wane, and they ceased going out as often he became worse over time.[465] Despite this evidence of the plaintiff’s decline it has not been such as to have prevented the plaintiff from having travelled with his family to the United States, driven in America, attended attractions including Disneyland. He has also been a moving force in a vintage and classic cars club. He has undertaken domestic renovating on a predominantly modest scale at his home.
[462]T846.
[463]T856.
[464]T856.
[465]T858.

Medical opinions
468I have made the point elsewhere in these reasons that no treating or consultant practitioner was asked to assess whether they believed that had the plaintiff not been repeatedly unsuccessful in promotions it would have prevented or reduced the risk to him of his psychological condition. No treating or consultant practitioner offered the opinion that had the defendant taken any steps that the plaintiff formulated as preventative or that had it responded differently to the conduct relied on to the Clarke incident or the boots incident that it would have prevented or reduced the risk of the development or worsening of any mental condition.
469Unsurprisingly, the medical reports and opinions on which the plaintiff relied are predicated on the truth of the very many incidents of bullying and treatment relied on by the plaintiff. As my reasons have explained, the plaintiff failed to prove that he was subjected to bullying. The boots incident was entirely of a different hue altogether, and although offensive and humiliating was not bullying.
470Aside from my adverse determination of the allegations under the nomenclature of bullying, I am not satisfied that it was reasonably foreseeable that the defendant’s conduct resulted in mental injury to the plaintiff.
Dr Ghani
471The plaintiff’s treating doctor Dr Ghani was the only medical practitioner to give viva voce evidence among those who have treated and examined the plaintiff. The balance of the reports was tendered between the parties by agreement. Dr Ghani said that the plaintiff’s concern in his workplace “was in relation to safety concerns” and his fear was in respect of “an accident waiting to happen at the workplace” and “that’s the limit of the fear that he reported.”[466] He said that the plaintiff “was worried about accidents happening any time, most probably a fatal accident” and “that’s the overriding consideration”.[467]
[466]T809, L11-18.
[467]T809, L19-27.
472I would regard the plaintiff’s worry about fatal or other accidents at work as too lacking to make good, for example, the plaintiff’s pleaded claim that the defendant failed to heed safety hazard requests or complaints. That allegation was particularised as one incident that occurred in February and March 2012. By comparison, the matters concerning promotions were not factors about which Dr Ghani testified to possessing knowledge about.[468] The allegation in any event was peculiar alleging as it did that the plaintiff was led to believe the defendant would cause drivers on shifts subsequent to him to drive straddles that had been the subject of hazard notices and had been sent to maintenance thereby compromising the safety of its employees and that he felt dejected by reason of his complaints being ignored. That allegation was not in any event proved on the evidence. The plaintiff properly acknowledged that he was not an expert in the machinery operated on site. His judgement on what amounted to a necessary maintenance matter was one that ultimately resided with the maintenance department.
[468] T811.

The measures that an employer has put in place to create a safe system of work
473Overall, I am satisfied that the defendant had a reasonable system of reporting hazards and unsafe behaviour, including bullying and harassment. There were safety policies, near miss and hazard reports, a noticeboard, and other measures within the safety regime including toolbox meetings. The plaintiff knew his employer’s system and was a consistent user of it having lodged a very significant number of them during his employment.
474The defendant appears to have had an open door workplace and that this is supported by the evidence that the plaintiff was not in the least hesitant in seeking out and having discussions with Ms Pitt, Mr Ellis, Ms Kerr and regularly with the maintenance department whenever he believed there was a reason to do so. The plaintiff seemed to have a particularly easy working relationship with Ms Pitt.
475The defendant was remiss in not taking further action after the canteen incident and the boots incident. The plaintiff was entitled to expect more.

476However, as the defendant submitted because the plaintiff has alleged a negligent failure to act by it, the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. In other words, the plaintiff must propound an alternative state of facts premised upon the defendant having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify what the defendant would have done had reasonable care been exercised and how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered.[469]

[469]Findlay v State of Victoria & Ors [2009] VSCA 294, [2]; Wodonga Regional Health Service v Hopgood [2012] VSCA 326, [31].

477The principle enunciated above is not novel, but was reinforced in State of Victoria v Kozarov[470] and expressed in the following terms:
“The critical question was whether the plaintiff had established, on the balance of probabilities, that the measures, which her Honour considered were required to be taken by the defendant to protect the plaintiff’s health, would have prevented the exacerbation of the plaintiff’s PTSD from that date.”[471]
[470][2020] VSCA 301.
[471]Ibid [102].

478There was no evidence adduced from any expert regarding what the defendant ought to or could have done to prevent the conduct about which the plaintiff complains and has treated as “bullying.” It is hard to conceive of any steps that could have been taken when the incidents were disagreements even sharply and offensively expressed between people or that resulted from failed grievance meetings or partially unfavourable assessment. I have already explained why some hypothetical steps would not have been reasonable or practical as it related to the asserted obligation by the defendant to interfere in the matrix assessments or why education or reinforcement of policies was not identified as an effective panacea. In addition, and not by way of any countenancing that the responsibilities in the provision of a safe workplace can be delegated away, it is of note that when the plaintiff did report “bullying” or “discrimination” or “victimisation” these were found to be unsubstantiated, unwarranted or disproved by independent investigations by WorkSafe.
479In terms of evidence from the plaintiff himself, he suggested that the employer should have taken concerned training in how to talk to people,[472] and that Mr Ellis should have showed him, but that such training was not offered. Mr Ellis denied this. He said he had offered to show the plaintiff how to talk to people on many occasions, but the plaintiff would not accept it.[473]
[472]T145, L1; T543, L1.
[473]Exhibit P42, File note of grievance meeting dated 4 February 2010, JCB 675.
480Even if the plaintiff could point to some steps or measures that the defendant could have taken to prevent the injury, these would present merely as possible steps or measures. There is no evidence which points to a probability that any such steps or measures would have prevented the injury. I am satisfied that this failure itself is fatal to the success of the plaintiff’s claim.

Jones v Dunkel[474]
[474] (1959) 101 CLR 298, 320.
481Both parties claimed a basis for me to draw adverse inference for witnesses each claimed the other should reasonably have expected to call but did not. I have been able to determine this proceeding without the need to draw inferences from uncalled witnesses. In particular, I noted that the defendant adduced evidence of the lack of whereabouts of or contact details for and a lack of record of, the employment of a number of persons whose names were raised in the proceeding. Similarly, the defendant pointed to the absence of David Schliebs and Mick Crompton, the latter of whom the plaintiff had included on his list of potential witnesses but was not called. None of the primary findings I have made and adverse conclusions I have drawn about the plaintiff would have been altered by any witness the defendant might have been thought likely or expected to have called and about whom an explanation for nonattendance was not forthcoming. In regard to the plaintiff’s evidence, I have either rejected some of it outright or, where there has been conduct that I accept was engaged in, I have not found it to be attendant with the requisite characteristics that warrant it to be assessed as bullying or victimising or harassing behaviour that was repeated or that the various and disparate events pointed to, amounted to a pattern of behaviour directed to such an end and in such circumstances as reasonably likely to give rise to mental harm.

Conclusion
482For the reasons expressed the plaintiff’s claim is dismissed.
483I direct that the parties file a minute of proposed orders that address the question of costs failing which I will list the matter for determination.

[2021] VCC 2154

22 December 2021