Stevens v DP World Melbourne Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0003

JAMES THOMAS STEVENS	Applicant
v
DP WORLD MELBOURNE LTD (ACN 000 049 301)	Respondent

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JUDGE:	BEACH, MACAULAY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2022
DATE OF JUDGMENT:	21 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 285
JUDGMENT APPEALED FROM:	[2021] VCC 2154 (Judge Ginnane)

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NEGLIGENCE – Workplace injury – Psychiatric injury – Alleged bullying – Whether judge erred in making credit findings unfavourable to plaintiff – Whether judge denied procedural fairness to plaintiff – Whether judge erred in not properly considering and analysing all of the evidence – Whether judge erred in not being satisfied that bullying occurred – Whether judge erred in not considering cumulative effect of incidents he found had occurred – Application for leave to appeal granted – Appeal allowed – Retrial ordered.

McLean v Tedman (1984) 155 CLR 306; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Kozarov v State of Victoria [2022] HCA 12; and Bersee v State of Victoria [2022] VSCA 231, referred to.

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Counsel
Applicant:		Mr V Morfuni KC with Mr P Haddad
Respondent:		Mr PM O’Grady KC with Mr SE Gladman and Ms L Burke
Solicitors
Applicant:	Shine Lawyers
Respondent:	Wisewould Mahony

BEACH JA
MACAULAY JA
J FORREST AJA:

Between 2004 and 2012, James Thomas Stevens (‘the plaintiff’) was employed by DP World Melbourne Ltd[1] (‘the defendant’) as a stevedore.
[1]Formerly known as P&O Ports Limited.
In August 2017, the plaintiff commenced a proceeding in the County Court claiming damages from the defendant in respect of psychiatric injuries which he alleged were caused by him being bullied and harassed in the course of his employment by co-workers and management of the defendant, between 2007 and 2012. In his statement of claim,[2] the plaintiff pleaded causes of action in negligence and breach of contract. By its defence,[3] the defendant denied the plaintiff’s allegations of bullying and harassment and alleged that the matters relied upon by the plaintiff were not capable of constituting bullying and/or harassment.[4]
[2]The final version of which was a further amended statement of claim dated 21 October 2019.
[3]The final version of which was a defence to the further amended statement of claim dated 11 November 2019.
[4]For completeness, we should note that the defendant also pleaded a defence of contributory negligence. For present purposes, it is not necessary to make any further reference to that plea in these reasons.
On 18 January 2022, following a 23-day trial, conducted between April and August 2021, a judge of the County Court dismissed the plaintiff’s proceeding and gave judgment for the defendant, in accordance with reasons published on 22 December 2021.[5] The plaintiff now seeks leave to appeal and, if leave is granted, to appeal from the judge’s dismissal of his proceeding. In his application for leave to appeal, he set out 22 proposed grounds of appeal. In the course of argument, however, he abandoned those grounds of appeal that challenged the judge’s rejection of his claim in contract (proposed grounds 1 to 4); a ground alleging that the judge erred in finding that the defendant was not vicariously liable for the acts of its employees, servants and agents (proposed ground 5); and a proposed ground of appeal alleging that the conduct of the judge gave rise to a reasonable apprehension of bias (proposed ground 21). In oral argument, the plaintiff pursued the balance of his proposed grounds of appeal which, in summary, sought to attack the judge’s findings about the plaintiff’s credit; the judge’s treatment of the evidence concerning the plaintiff’s bullying claims; the judge’s conclusions on the issue of bullying in relation to specific incidents alleged by the plaintiff; the judge’s failure to find that there was bullying, notwithstanding that he accepted that some of the incidents alleged by the plaintiff had been established; and, generally, the rejection of the plaintiff’s negligence claim.
[5]Stevens v DP World Melbourne [2021] VCC 2154 (‘Reasons’).
For the reasons which follow, the plaintiff’s application for leave to appeal must be granted, the appeal must be allowed, the orders of the judge must be set aside, and the plaintiff’s claim in negligence must be remitted for rehearing and determination by a different judge of the County Court.

The bullying and harassment allegations at trial

The plaintiff’s allegation of bullying and harassment was made in para 4 of his statement of claim, in the following terms:
In the course of his employment from approximately 2007 to 2012 the Plaintiff 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.
Underneath para 4 of the statement of claim, the plaintiff provided 22 paragraphs of particulars in support of his allegation of bullying and harassment (‘the bullying and harassment particulars’). These particulars formed the basis of the plaintiff’s case at trial. In the particulars the plaintiff alleged that from about 2008, he was frequently and repeatedly verbally abused, harassed and called names by fellow workers, foremen and supervisors employed by the defendant. In addition, the particulars identified a significant number of specific incidents of abuse to which the plaintiff was subjected. Specifically, the bullying and harassment particulars provided:
(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’ 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, the particular dates and times of which the Plaintiff cannot now recall, 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 a 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 in an angry manner, saying “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 Schlievs the deputy secretary of the Maritime Union of Australia and reported the ongoing abuse following the Mick Crompton incident. David Schlievs told the Plaintiff that he told Kevin Goss to ensure that the Plaintiff was given a fair go. David Schlievs reported back to the Plaintiff that Goss had told Schlievs “I am not gonna do it. He’s a fuckin dog”. Bob Chappel had also indicated to Schlievs that he was not willing to give the Plaintiff a fair go.
(i) After the Kevin Goss incident, Goss further bullied and harassed and ostracized 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 Schlievs, MUA Deputy Secretary, mentioned that the matrix doesn’t 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 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’ abuse “that was a bit rough” the Plaintiff reported Ellis’ 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 ostracized when he learned that Jason Clark,[6] Equipment Controller (“EC”), was deliberately not answering his calls over the radio;
[6]In these particulars, and in emails and other documents tendered at trial, Mr Clarke’s name is sometimes spelt ‘Clark’ and other times ‘Clarke’. The material does not disclose which spelling is correct. In these reasons, we will refer to this person as Mr Clarke, unless quoting from a document where his name is spelt Clark.
(o) In or about February 2010, Jason Clark abused the Plaintiff over the radio for making a report to Gary Ellis about the pedestrian lights not working:
(i) Clark 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 Clark 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 Clark radio incident as follows:
(i) Clark 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) Clark was red in the face and spitting saliva as he addressed the Plaintiff;
(iii)Kevin Goss was also present and said to Clark “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 Golding:
(i) Golding sent for the Plaintiff to be brought to his office;
(ii) Upon arrival, Golding 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 ostracized 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”.

The witnesses and evidence given at trial

The plaintiff gave evidence at trial and called the following additional witnesses:
•Arshad Ghani, the plaintiff’s general practitioner, whose first relevant consultation with the plaintiff occurred on 10 February 2011;
•Joanna Narelle Stevens, the plaintiff’s wife, who gave evidence about her observations of the plaintiff after he commenced employment with the defendant and following the termination of that employment;
•Peter Cunningham, an employee of the defendant who worked in straddle operations from 1986 to 2012;
•Wayne McKaid, an employee of the defendant who worked as a crane operator, straddle driver and refueller between 1999 and 2015;
•Stephen Murray, an employee of the defendant who worked as a straddle driver between 1996 and 2016; and
•Sharon Bowker, a straddle driver employed by the defendant from 2004.

The plaintiff gave extensive evidence about the circumstances of his employment with the defendant. Largely, his evidence conformed with much of the detail set out in the bullying and harassment particulars. During the course of a lengthy cross-examination, the plaintiff’s credit was put in issue to a significant degree. As to the plaintiff’s other witnesses, broadly speaking, they were, to a greater or lesser extent, corroborative of particular aspects of the plaintiff’s evidence and his description of the defendant’s systems and the working environment. For example:
•Mr Cunningham gave evidence that he was aware that many supervisors were not allocating work to the plaintiff, he was aware of the plaintiff being referred to as a ‘rat dog’ by Kevin Goss (Mr Goss is referred to in paras (c)(iii)–(iv), (g), (i) and (p) of the bullying and harassment particulars) and Bob Chappel (who is referred to in paras (d)(v) and (h) of the bullying and harassment particulars), and that the plaintiff was ‘devastated’ when he learned that someone had ‘shit in [his] boots’;
•Mr McKaid gave evidence about the use of the term ‘rat dog’ in the workplace meaning that a person was ‘no good and can’t be trusted’, and an occasion where Bob Chappel pointed to a labour sheet and said, in respect of the plaintiff, ‘I have stuck it up him’, which meant that Mr Chappel had given the plaintiff ‘one of the crappy jobs’;
•Mr Murray gave evidence of an incident where Bob Chappel swerved a vehicle saying, ‘There’s that cunt Stevens watch him shit himself. He’s been messing around with the bonus’, and of having heard fellow employees refer to the plaintiff as ‘rat dog’ and a ‘lagger’ on many occasions in the plaintiff’s presence, and of having seen graffiti, directed to the plaintiff, which said ‘dog Stevens OH&S officer’; and of Kevin Goss, Bob Chappel, Mark Johnson and other employees laughing about the defecation in the plaintiff’s boots; and
•Ms Bowker gave evidence that she was aware of the defecation incident, and that supervisors and management of the defendant ‘had a great laugh, they all thought it was quite funny’, and that the plaintiff was referred to as a ‘rat’ and a ‘dog’ by ‘charge foremen’, Phil Buttress, Bob Chappel, Kevin Goss and Peter Brooker.
The defendant called five witnesses at trial:
•Leissa Pitt, who was the Safety Manager between 2008 and September 2010 (referred to in paras (l)(iii) and (m) of the bullying and harassment particulars);
•Gary Ellis, who was the Operations Superintendent between January 2006 and 2009/2010, and the Operations Manager between that time and 2014 (referred to in paras (b), (e), (l), (m), (o), (s) and (v) of the bullying and harassment particulars);
•Jannifer Kerr, who was the Human Resources Manager between August 2006 and November 2011;
•William Goulding, a shift supervisor employed by the defendant between late 2003 and July 2021 (referred to as ‘Will Golding’ in para (u) of the bullying and harassment particulars); and
•Jake-James Georgiou, the solicitor with the carriage of the proceeding on behalf of the defendant.
In broad terms, Ms Pitt, Mr Ellis, Ms Kerr and Mr Goulding gave evidence that they were unaware of the plaintiff being bullied or harassed in the course of his employment. Particular incidents put to each witness were either not recalled by the witness or the subject of a denial by them of having witnessed any such alleged incident.
In her evidence, Ms Pitt described the plaintiff as a ‘very dedicated safety rep and highly conscientious towards assisting the business to identify hazards and come up with solutions’. She agreed that the plaintiff submitted ‘about 300’ hazard reports a year, while the average number submitted by fellow employees was five to 10 a year. Ms Pitt said that she never saw Mr Ellis berate or yell at the plaintiff or tell him to stop submitting hazard reports. Ms Pitt agreed that the plaintiff had ‘report[ed] to [her] about graffiti’. She also said that she had had conversations with the plaintiff about bullying. She did not recall the details of these conversations. She said that the plaintiff described bullying
in the sense that people weren’t appreciative of him reporting the hazards and that he would potentially be discriminated against and looked upon in a negative way when it came to ratings and upgrades.
In his evidence, Mr Ellis said that at times he was frustrated with the plaintiff. He denied, however, shouting at the plaintiff or swearing at him or speaking about him in a derogatory manner. He said that the plaintiff used words like victimisation and discrimination ‘quite regularly’. A statement made by Mr Ellis in September 2011 was tendered by the defendant. The statement provided:
I am aware that over the years, James has raised numerous issues in relation to safety and has also raised concerns about bullying and harassment in the work place.
In fact if James is not provided with an answer that he is looking for in relation to a work matter he considers that he has been subjected to bullying and intimidation.
Whenever James has raised an issue or expressed concerns these matters have been investigated by the company and in the majority of cases, his complaint has been found to be unsubstantiated.
…
I am aware that on occasions, James has made complaints about various co-workers. However, in this regard, I have observed that James has difficulty in conversing with other members of the work force. It would be fair to say that James is certainly not popular amongst his co-workers.
When I held the role of operations superintendent, James approached me on a number of occasions raising various issues regarding safety matters and bullying issues. Unfortunately, James perceives any situation where a co-employee or supervisor either raises their voice, swears or disagrees with his opinion as bullying and harassment.
In her evidence, Ms Kerr said that she could not recall any graffiti issue involving the plaintiff. Ms Kerr was shown emails passing between her and the plaintiff in 2007 (to which we will refer below) about the graffiti the subject of para (a) of the bullying and harassment particulars. The emails shown to Ms Kerr during the course of her evidence did not refresh her memory. In relation to any graffiti on a union noticeboard, Ms Kerr said that she would have to speak to a union delegate before it could be removed.
In his evidence, Mr Goulding said that he had a pleasant relationship with the plaintiff. He said that the plaintiff was a good employee and he never had any issues with the plaintiff personally.
Mr Georgiou gave evidence of enquiries he made with the defendant as to whether particular individuals named in the bullying and harassment particulars (and not called as witnesses by the defendant) were still employed by the defendant. These included Bob Chappel, Jason Clark, Kevin Goss and Mick Crompton. Mr Georgiou’s evidence was that all of these witnesses had left the employ of the defendant. He did not, however, give any evidence of any attempts made to locate or call them as witnesses.
In addition to the witnesses who gave evidence at trial, a considerable amount of documentary evidence was tendered by the parties. The documentary evidence included recordings made by the plaintiff of particular conversations to which he was a party, emails passing between the plaintiff and other employees of the defendant, relevant policy documents (including the defendant’s Discrimination, Harassment, Bullying and Freedom of Association Policy and the defendant’s Human Resources Handbook), photographs of graffiti concerning the plaintiff, clinical records of the plaintiff’s general practitioner and medical reports.
In the version of the Discrimination, Harassment, Bullying and Freedom of Association Policy, bearing a revision date of October 2009, tendered at trial, under the heading ‘Purpose’, the policy stated:
The Company endeavours to provide a work environment of integrity, equity and respect for all employees, which is free from all forms of unlawful conduct, including unlawful discrimination, harassment, bullying and behaviour which impedes freedom of association.
Under the heading ‘What is bullying?’, the policy provided:
Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that may cause harm, including risks to health and safety.[7]
Unreasonable behaviour means behaviour that a reasonable person having regard to all the circumstances would expect to humiliate, intimidate or threaten another person. Such behaviour can include an individual’s or group’s actions or practices which humiliate, intimidate or threaten another person.
[7]Emphasis added.
While the amount of documentary evidence tendered at trial is too voluminous to describe in detail, the following pieces of evidence are also of some note:
(1)The plaintiff tendered a copy of the union shop committee election poster of July 2007, upon which was written the words ‘vote for me, I’m rat dog’ next to the plaintiff’s name. He also tendered an email he wrote on 12 July 2007 to Ms Kerr. The email provided:
Subject: Re: Notice Board
Dear Jannifer,
I have removed the item in question as it made me feel uncomfortable and [is] offensive. Why did I have to bring this to someone’s attention? This is victimisation, bullying whatever you would like to call it. A person in charge should have removed it? I came to work early and saw the item. Yet I had to remove it at the end of my shift. It was there for day [sic] and arvo shift? I brought it to your attention and you did not remove it? DP World has a Bullying Policy in the workplace yet people in charge do not care. If I did not remove it would still be on the board? This would be totally unfair!
Why was the item not removed by yourself yesterday? Why was the item not removed by the person in charge on day shift and arvo shift? Why was this not removed by the MUA delegates? Do you think this deserves a near miss report?
Regards
James Stevens
(2)On 31 March 2010, the plaintiff sent an email to Ms Pitt as follows:
Subject: bullying
Good morning Leissa,
Last night at approximately 10 pm in the canteen area I was approached by Jason Clarke who inturn (sic) started to abuse me over Gary Ellis having a word with him. Jason Clarke was the EC that abused me for asking about the pedestrian crossing lights. I have filled out a hazard report about this. Jason Clarke commented about the recording? Bullying in the work place is a clear breach of the ACT. I was even threatened by Jason Clarke and inturn (sic) by someone else there. Paul Pascu witnessed the whole thing and nothing was said in my presence. We have previously spoken about Bulling (scil, bullying) in the work place and we need to work out what to do to stop this. I would like to discuss this further as to how we can stop bullying in the work place
Regards
James Stevens
Of particular note, the plaintiff’s email of 31 March 2010[8] was forwarded by Ms Pitt to Mr Ellis and Ms Kerr. Some hours later on the same day (31 March 2010), Ms Kerr responded to the plaintiff saying that she noted that the plaintiff had raised the issue of bullying with the defendant previously. Ms Kerr said that, given the plaintiff ‘was reporting another incident’, she believed it would be ‘negligent of the Company not to act’. Ms Kerr then said, ‘we will treat the information provided [by the plaintiff in his 31 March 2010 email] as formal notification and we will commence investigating the matter’.
[8]Referred to in para 18(2) above.

The judge’s reasons

After giving an overview of the plaintiff’s claim and the defendant’s defence, and identifying the witnesses who were called at trial, the judge said:
I 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.[9]
[9]Reasons, [14].
The judge then made a devastating finding in relation to the plaintiff’s credit as follows:
As 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.[10]
[10]Ibid [15].
In findings that did not rehabilitate the plaintiff’s credit, the judge described the plaintiff as having ‘exhibited obsessional traits that were evident in listening to and observing him over the course of the trial’.[11] We interpolate that such findings that the judge made about the plaintiff as a result of ‘observing him over the course of the trial’ are the subject of a ground of appeal that the judge failed to accord the plaintiff procedural fairness in not forewarning the plaintiff’s counsel that he considered the plaintiff’s demeanour during the course of the trial ‘effected [sic] the acceptance of the plaintiff’s evidence’.[12]
[11]Ibid [18] (emphasis added).
[12]Ground 8. Additionally, ground 9 makes complaint that the judge ‘erred in relying on the plaintiff’s demeanour during the course of the trial to make adverse credit findings against him’.
Having made adverse findings about the plaintiff’s credit, and some observations about ‘the employer creat[ing] something of a rod for its own back by its implicit encouragement to the plaintiff to continue his pursuit of maintenance and safety issues’,[13] the judge then said:
I am not satisfied that the plaintiff proved a breach of contract.
I 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.
Despite being satisfied that the plaintiff on occasions fabricated complaints and exaggerated descriptions of conduct to which he was allegedly subjected, nonetheless, I am (sic) 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.
I 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.
I 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.
I am not satisfied that the plaintiff was subjected to repeated behaviour or a pattern of conduct that amounted to bullying.
I 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.[14]
[13]Reasons, [19].
[14]Ibid [20]–[26].
Having expressed these conclusions, the judge then set out his analysis of the issues in dispute between the parties. He referred to the conduct of the proceeding as requiring him to make a determination in respect of each of the ‘multiple incidents and interactions between the plaintiff and co-workers and management’.[15] His Honour lamented that the events alleged by the plaintiff occurred over a period commencing 15 years earlier, saying that it was ‘unsatisfactory that such a period of time elapsed in the case coming on for trial’.[16] In this context, the judge noted that the memories of Mr Ellis, Ms Kerr and Ms Pitt were diminished. The judge described Ms Kerr and Ms Pitt as not having retained much detail of critical events.[17] That said, the judge 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’.[18] The judge said that he was ‘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’.[19]
[15]Ibid [33].
[16]Ibid [34].
[17]Ibid.
[18]Ibid.
[19]Ibid.
The judge accepted the defendant’s description of the workplace as ‘a robust workplace environment which was not for the faint-hearted’.[20] The judge analysed each of the bullying and harassment particulars by reference to the evidence given by the plaintiff, Ms Pitt, Mr Ellis and Ms Kerr. Each pleaded incident was considered separately by the judge. In large part, the judge rejected the plaintiff’s evidence, saying variously that it was fabricated or false or exaggerated. In respect of some of the evidence of the plaintiff which his Honour described as ‘fabricated’, no specific reason was given by the judge as to why he concluded that the evidence was fabricated rather than merely not to be accepted.
[20]Ibid [45].
That said, the judge accepted some aspects of the plaintiff’s claim. Specifically, his Honour accepted some of the facts alleged by the plaintiff in respect of paras (a), (d), (k), (p), (r), (s) and (u) of the bullying and harassment particulars as follows:
(1)The judge accepted that in 2007, in the course of an election, a union poster on display in the amenities area that contained the names of all candidates was interfered with, and next to the plaintiff’s name was written the words ‘vote for me, I’m rat dog’.[21] His Honour said, however, that he did not regard this as bullying, and he was not satisfied that it was reasonably foreseeable that the writing of these words on the poster, in the course of a union election, could lead to psychiatric injury.[22] The judge said that he did not accept that there was any breach of duty on the part of the defendant in failing to take steps which would have prevented the occurrence of such conduct.[23]
(2)The judge accepted that in December 2008 there was a confrontation between the plaintiff and Mr Crompton, in which Mr Crompton used words in front of fellow workers which were capable of offending the plaintiff.[24] While the judge said that Mr Crompton’s words could even have caused the plaintiff some distress, the conduct was not repeated and was ‘not capable of being assessed as part of a pattern of conduct or behaviour directed at the plaintiff’.[25] He said that while the conduct may have been able to satisfy certain characteristics attendant with the usual definitions of bullying, it was not bullying.[26] The judge also accepted a submission by the defendant that, even if this conduct could amount to bullying, there was no breach of duty on the part of the defendant because the defendant carried out an investigation, from which investigation the defendant was ‘entitled to arrive at a conclusion that the plaintiff’s claim of harassment was unsubstantiated’.[27]
(3)While the judge rejected the plaintiff’s evidence as to the frequency with which he was subjected to graffiti in the men’s toilets, he accepted that in August 2009 there was graffiti about the plaintiff on a toilet cubicle door.[28] The judge appears to have found that this graffiti did not constitute bullying because he was not satisfied that the plaintiff was ‘subjected to a pattern of behaviour directed at him’.[29]
(4)His Honour accepted that in February 2010, Mr Clarke used language which was ‘open to question’ in response to ‘a legitimate query by the plaintiff about pedestrian lights’.[30] The judge also accepted that Mr Clarke ‘confronted the plaintiff in the canteen’.[31]
(5)The judge accepted that in December 2010, a person or persons unknown put faeces in the plaintiff’s gumboots. The judge found that the plaintiff was told that this had occurred and that the boots had been washed prior to the plaintiff being made aware of the incident and before he arrived at his locker where his boots were located.[32] The judge said, however, that this conduct did not amount to bullying as it was not repeated and ‘nothing else akin to it was visited on the plaintiff’.[33] His Honour said that he did not accept that the incident could be ‘evaluated as part of a pattern of behaviour’.[34]
(6)The judge said that he was satisfied on the balance of probabilities that Mr Ellis told the plaintiff that ‘it was lucky the faeces had not been left in his helmet as opposed to his boot’.[35] The judge said that he regarded this statement ‘as a failed attempt at levity to try and lighten an otherwise exceptional incident to which the plaintiff had been exposed’.[36]
(7)The judge accepted that in January 2012, Mr Goulding told the plaintiff that management would ‘take out the large fucking bat and they’ll take a swing [at the plaintiff]’.[37] The judge said, however, that when the surrounding circumstances in which these words were spoken were considered, these words were not a literal threat of violence or a warning of the same.[38] The judge also said that he was not satisfied that the exchange between the plaintiff and Mr Goulding was an occasion of bullying.
[21]Ibid [144].
[22]Ibid [158].
[23]Ibid [159].
[24]Ibid [236]–[238].
[25]Ibid [239].
[26]Ibid.
[27]Ibid [240].
[28]Ibid [330].
[29]Ibid [333].
[30]Ibid [286].
[31]Ibid [291].
[32]Ibid [343].
[33]Ibid [347].
[34]Ibid.
[35]Ibid [341].
[36]Ibid.
[37]Ibid [382].
[38]Ibid.

Having largely rejected the plaintiff’s evidence about specific incidents, or concluded that such instances of abuse as were disclosed on the evidence did not amount to bullying, the judge held that the defendant was never on notice of any risk to the plaintiff’s psychiatric health.[39]
[39]Ibid [308], [463].
Under the heading ‘The Plaintiff’s mental state’, the judge said:
Although 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.[40]
[40]Ibid [465].
The judge said that he was satisfied that the defendant had a reasonable system of reporting hazards and unsafe behaviour, including bullying and harassment.[41] He said, however, that the defendant ‘was remiss in not taking further action after the canteen incident [March 2010] and the boots incident [December 2010]’, and that the plaintiff ‘was entitled to expect more’.[42]
[41]Ibid [473].
[42]Ibid [475].
The judge also found against the plaintiff on the issue of causation, saying there was no evidence adduced from any expert regarding what the defendant could have done to prevent the conduct about which the plaintiff made complaint.[43] As the judge then put it:
Even 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.[44]
[43]Ibid [478].
[44]Ibid [480].
Finally, in dealing with a Jones v Dunkel[45] submission made by the plaintiff, the judge said:
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.[46]
[45](1959) 101 CLR 298; [1959] HCA 8.
[46]Reasons, [481].
While this passage in the Reasons appears under the heading, ‘Jones v Dunkel’, the second sentence of it appears to be a summary of the judge’s reasons for rejecting the plaintiff’s claim. For completeness, we should also note that, notwithstanding the unusual strength of his Honour’s language in the first sentence of the paragraph (that none of his Honour’s findings would have been altered by any witness the defendant might have been expected to call and about whom an explanation for non-attendance was not forthcoming) the plaintiff did not advance any ground of appeal relating to this statement. One might ask, rhetorically, how the judge could be so certain that nothing said by any other person referred to in the bullying and harassment particulars (including any admission that might be made by such a person that the plaintiff’s evidence was entirely true) would have altered any of his Honour’s findings.

Plaintiff’s submissions in this Court

The plaintiff’s submissions in this Court may be summarised as follows:
(1)The judge was wrong to make adverse credit findings against the plaintiff. In making adverse credit findings, the judge wrongly relied upon conduct of the plaintiff during the course of the trial which was not raised with the plaintiff or his counsel. Moreover, the judge’s credit findings which were adverse to the plaintiff could not be justified when one had regard to the whole of the evidence (including the evidence of other witnesses at trial and documentary evidence which was corroborative of the plaintiff’s case).
(2)In determining the issues in dispute between the parties, the judge erred in not considering and analysing the whole of the evidence tendered and adduced at trial.
(3)The judge erred in analysing specific incidents in isolation by reference to whether they satisfied defined criteria for bullying, rather than looking at the whole of the evidence to determine whether the plaintiff had suffered a psychiatric injury as a result of a breach by the defendant of the duty of care it owed the plaintiff to take reasonable care to avoid the plaintiff suffering from psychiatric injury.
Additionally, the plaintiff submitted that, properly analysed, those parts of his case which were accepted by the judge should have led his Honour to conclude that the defendant breached the duty of care it owed to him as its employee. Further, the plaintiff submitted that, if the judge had properly analysed the evidence, he would have accepted a greater proportion of the plaintiff’s case, providing additional bases upon which his Honour should have concluded that the defendant had a common law liability in respect of the plaintiff’s psychiatric condition.

Defendant’s submissions in this Court

The defendant contended that the judge’s key findings could be summarised as follows:
(a)the plaintiff was a ‘very unsatisfactory’ witness — a considerable amount of his evidence being unreliable or untrue, with his descriptions of the conduct to which he was exposed being florid and exaggerated;
(b)most of the alleged incidents on which the plaintiff relied did not occur, and the small number of remaining incidents which the judge accepted had occurred were not properly characterised as ‘bullying’;
(c)the risk that the plaintiff might suffer psychiatric injury was not reasonably foreseeable; and
(d)in any event, the plaintiff failed to prove that his psychiatric injury was caused by any breach of duty on the part of the defendant.
The defendant submitted that, largely for the reasons given by the judge, these key findings were unimpeachable. In order to succeed, the plaintiff needed to show error. No error has been demonstrated. Moreover, the judge’s findings were, to a considerable extent, affected by his Honour’s impressions about the credibility and reliability of the witnesses called at trial. As such, those findings should not be disturbed unless they are demonstrated to be wrong by ‘incontrovertible facts’ or ‘uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[47] The defendant submitted that none of his Honour’s findings had been shown to be wrong in this way.
[47]See Lee v Lee (2019) 266 CLR 129, 148–9 [55]; [2019] HCA 28.

Analysis

As we have already said, the plaintiff pursued this appeal only in relation to his claim in negligence. At the conclusion of argument, there were 16 live grounds of appeal, dealing broadly with the way in which his Honour dealt with the plaintiff’s credit, the way in which he analysed the evidence, his conclusions with respect to whether the plaintiff was bullied, and his rejection of the plaintiff’s negligence cause of action. To some extent, some of the grounds of appeal overlap with others, and some grounds of appeal deal with more than one topic. In the circumstances, it is convenient to start with his Honour’s treatment of the plaintiff’s credit.

The judge’s conclusions about the plaintiff’s credit

A fair reading of the whole of his Honour’s judgment reveals that a central plank in his Honour’s reasoning was his rejection of the plaintiff as an honest and reliable witness. The judge commenced his analysis with a statement of this conclusion, a conclusion to which he returned throughout his reasons when he dealt with the individual components of the plaintiff’s case. That said, while his Honour’s criticisms of the plaintiff’s reliability and honesty are expressed in strong and conclusionary terms, there is little in the Reasons which explains why his Honour was so unimpressed with the plaintiff as a witness.
At [15] of the Reasons (the central credit finding, set out above at [21]), the judge gives four examples of ‘matters of honesty [which] were not trifling’. While it may be understood that his Honour found that, in respect of each of these four matters, the plaintiff’s evidence was not to be accepted, it is far from clear why his Honour was so positive that the plaintiff’s evidence on those matters was dishonest, rather than simply being mistaken (either by reason of a faulty memory or due to some misperception on the plaintiff’s part).
Further instances of this problem with the Reasons can be seen in his Honour’s individual consideration of each of the incidents referred to in the bullying and harassment particulars. For example, when dealing with the Kevin Goss incident,[48] the judge referred to two allegations made by the plaintiff as having been ‘fabricated’.[49] While there is no specific ground of appeal alleging inadequacy of reasons, the basis upon which the judge held that these two allegations were ‘fabricated’ is unstated and cannot be discerned from his Honour’s reasons. Thus, we are unable to determine whether there was a proper basis for this conclusion, or whether the conclusion is attended by error. This problem permeates many of his Honour’s conclusions concerning individual parts of the plaintiff’s case.
[48]Paragraph (g) of the bullying and harassment particulars.
[49]Reasons, [205].
Reading his Honour’s judgment in its entirety one is left with the impression that there must have been unstated matters, additional to those referred to by his Honour in the Reasons, which led him to make an array of such negative findings about the plaintiff’s credit, and to reject substantial parts of the plaintiff’s account — notwithstanding that they were not specifically contradicted by other evidence called or adduced at trial.
On the question of whether there were matters taken into account by the judge which were not specifically described in the Reasons, we have already noted that the judge made negative credit findings about the plaintiff as a result of observations he said that he had made of the plaintiff ‘over the course of the trial’.[50] In many cases, an appellate court might conclude that a statement such as this, made by a trial judge, is merely a loose way of saying that the judge had based an adverse credit finding upon the way in which a witness had given evidence (that is, the applicant’s demeanour in the witness box). We are not persuaded, however, that this is an appropriate approach in the present case. The judge’s reference to the plaintiff exhibiting obsessional traits that were evident in observing him over the course of the trial leads us to conclude that, in the context of the balance of his Honour’s reasons, there is a real prospect that the judge has made adverse credit findings against the plaintiff on the basis of matters which occurred when the plaintiff was not giving evidence, and which were not put to the plaintiff or his counsel so that they might be given an opportunity to give or call evidence, or make submissions, about whatever the judge claimed to have observed.
[50]Reasons, [18].
As best we can determine from the judge’s Reasons, his Honour appears to have accepted the plaintiff’s evidence only when the existence of documentary evidence or a concession by a defendant’s witness made the rejection of the plaintiff’s evidence untenable. That said, the corroborative effect on the plaintiff’s evidence of many of the documents tendered at trial tells against the proposition that every statement made by the plaintiff, which was not in terms specifically corroborated, was the product of the plaintiff’s dishonesty or exaggeration. We are unable to see why those parts of the plaintiff’s evidence which were not specifically corroborated were rejected by the judge irrespective of either their inherent believability in the context of the whole of the evidence, or the lack of specific contradictory evidence.
Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his employment.[51] In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff’s evidence, might have been the product of the mental injury that arose in the course of the plaintiff’s employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff’s mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff’s evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence.

The judge’s analysis of the evidence

[51]Reasons, [465].

Where his Honour rejected the plaintiff’s evidence on an issue he, nevertheless, remained obliged to examine any other evidence adduced at the trial (oral or documentary) which may have substantiated the plaintiff’s assertion on that point. The need to examine all the evidence is a fundamental obligation of a trier of fact (be it judge or jury).This was particularly so in this case where there was a ‘question mark’ over the plaintiff’s psychiatric state and his ability to provide an accurate account of workplace events.
As we have already observed, at the commencement of his analysis, the judge made findings about the credit of the plaintiff[52] and the credit of the defendant’s witnesses, Mr Ellis, Ms Kerr and Ms Pitt.[53] The judge did not specifically deal with the ‘plaintiff’s worker witnesses’ (as he called them), Mr Cunningham, Mr McKaid, Mr Murray and Ms Bowker, until he had dealt with more than half of the incidents referred in the bullying and harassment particulars.[54] Unlike the judge’s treatment of the plaintiff and the defendant’s witnesses, the judge did not make any findings about the honesty or otherwise of Mr Cunningham, Mr McKaid, Mr Murray and Ms Bowker (who, for convenience, we will also refer to as the ‘plaintiff’s worker witnesses’).
[52]Ibid [15].
[53]Ibid [34].
[54]The bullying and harassment particulars were dealt with by the judge at Reasons, [144]–[311] and [326]–[449] with the plaintiff’s worker witnesses being dealt with at Reasons, [312]–[325].
The judge dealt with the plaintiff’s worker witnesses at a very high level of generality, in the main not descending to the level of whether a particular statement made in evidence by one of these witnesses was accepted or rejected by him. For example, after reciting Mr Cunningham’s evidence that he (Mr Cunningham) had heard the plaintiff being referred to as a ‘rat dog’ or ‘lagger’ quite extensively over a period of weeks,[55] the judge said:
Mr Cunningham’s evidence was not of a character and type upon which I would be satisfied in concluding that there had been a prevailing atmosphere of exclusion of belittling or offensive treatment exhibited to the plaintiff. At best, the evidence was that there were some people who did not like the plaintiff and spoke disparagingly of him among themselves but not to the plaintiff.[56]
[55]Reasons, [314].
[56]Ibid [315].
More broadly, and after setting out some of the things said by Mr Murray and Ms Bowker in evidence (but not Mr McKaid), without saying whether these statements were accepted or rejected by the judge, his Honour said:
The plaintiff’s [worker] witness evidence does not provide a basis for an assumption that if the matters related by them occurred that the defendant was on notice of any of them and that it was aware of an ongoing and pervasive belittling or an inhospitable and exclusionary work environment such as for it to have reasonably anticipated the plaintiff to be at risk of harm. Furthermore, the matters related by the witnesses are conceptually disaggregated from the specific incidents relied on by the plaintiff. It would be wrong to draw a connection between them as a basis for a pattern of conduct. As well they bear no sufficient evidentiary connection to the plaintiff’s claim that he was subject to the offensive treatment because of his commitment to safety.[57]
[57]Ibid [324].
It may immediately be observed that the plaintiff’s worker witnesses did not give evidence limited only to the issue of whether the defendant was on notice of any particular incident or specific conduct of the defendant’s employees. Their evidence was potentially relevant to a wider range of issues. For example, the evidence of the plaintiff’s worker witnesses was (if accepted) capable of supporting the plaintiff’s description of a workplace in which he was subjected to harassment and abuse from time to time without any intervention from the defendant. Further, the acceptance of that evidence made it more likely that the plaintiff’s account of the specific incidents of bullying and harassment about which he gave evidence was accurate.
Nine witnesses (the plaintiff, the four plaintiff’s worker witnesses and the four defendant’s witnesses to whom we have already referred) gave evidence at trial about the defendant’s workplace, its systems of work, its policies, and the interactions between the plaintiff and various relevant employees of the defendant. A significant body of documentary evidence was tendered which also bore on these matters. Different accounts and different descriptions were given of particular incidents and events by each of the witnesses. To some extent, some witnesses and documents corroborated one account or description; while others corroborated a different account or description. An unfortunate feature of the judge’s reasons for judgment is the failure to identify with any precision the evidence for or against particular parts of the plaintiff’s case, and then not to resolve identified conflicts in the evidence before making a relevant finding.
Moreover, in large part, a reader of the Reasons is left to wonder what (if any) reliance the judge placed upon the evidence of the plaintiff’s worker witnesses, or upon relevant documentary evidence, when the judge rejected the plaintiff’s evidence on a particular topic and concluded that he was satisfied that a particular alleged incident had not occurred. Indeed, on many occasions when the judge rejected the plaintiff’s account of a particular incident, one is left with the impression that this was done without any real consideration being given to other evidence which could have been regarded as generally supportive of the plaintiff’s case. More specifically, it appears to us that much of the plaintiff’s case was rejected by the judge: first, simply because the judge considered the plaintiff’s evidence to be dishonest or exaggerated, without examining whether some part of the plaintiff’s evidence (perhaps shorn of some ‘florid’[58] descriptor or intensifier) should be accepted in the light of all of the evidence adduced at trial; and secondly, because the evidence of the plaintiff’s worker witnesses was considered to be ‘conceptually disaggregated from the specific incidents relied upon by the plaintiff’,[59] and therefore was not corroborative of the plaintiff’s evidence in any relevant way.

The judge’s rejection of the plaintiff’s bullying/negligence claim

[58]Ibid [15], [267].

[59]Ibid [324].

Before considering the various incidents of bullying and harassment alleged by the plaintiff, the judge discussed the issue of bullying in the abstract. In the course of this discussion, his Honour set out various definitions of bullying,[60] including a definition provided by WorkSafe Victoria, as follows:
Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.[61]
[60]Ibid [117]–[122].
[61]Ibid [117].
While the judge correctly observed that bullying is not a separate tort,[62] he nevertheless analysed the various incidents of bullying and harassment alleged by the plaintiff by reference to the definitions of bullying to which he had referred. As we have already noted, a number of incidents which the judge accepted had in fact occurred (for example, the defecation in the plaintiff’s boots) were determined by the judge not to be bullying on the basis that the particular incident was not ‘repeated’.[63]
[62]Ibid [113].
[63]See, for example, Reasons, [333] and [347].
The judge examined each of the bullying and harassment incidents alleged by the plaintiff individually, first to determine whether he was satisfied that the incident occurred, and secondly to determine whether the alleged incident constituted bullying. There can be no criticism of his Honour for examining the evidence in respect of each incident separately to determine whether or not the incident occurred. Equally, there can be no criticism of an analysis which starts by determining whether or not a proved incident amounted to bullying. The gap in his Honour’s reasoning process was, however, not to then consider whether the totality of the incidents he found to have occurred amounted to bullying; more particularly, whether (again in totality) they provided a basis for finding that the defendant was, at some time during the plaintiff’s employment, in breach of its duty to provide a safe system of work. This is particularly so where it was not in issue that the plaintiff’s psychiatric injury was work related — the fundamental question being whether at some point of time during his employment the risk of that type of injury should have been foreseen by the defendant.[64]
[64]Kozarov v State of Victoria [2022] HCA 12, [7]-[11] (Kiefel CJ and Keane J), [82]-[84] (Gordon and Stewart JJ) (‘Kozarov’); Bersee vState of Victoria [2022] VSCA 231, [84]-[89] (‘Bersee’).
As we have already noted, the defendant attempted to support the judge’s rejection of the plaintiff’s claims by submitting that most of the alleged incidents on which the plaintiff relied did not occur, and the small number of remaining incidents which the judge accepted had occurred were not properly characterised as bullying. Two points may be made:
(1)First, the fact that the judge did not accept that a number (even a large number) of the alleged incidents occurred is beside the point. The task for the judge was to determine whether the incidents which he found did occur constituted bullying or gave rise to a relevant breach of duty in all the circumstances.
(2)Secondly, merely because a worker’s tormentors engaged in a variety of activities vis-à-vis that worker cannot mean that, because of the variation in activities and lack of repetition of particular forms of conduct, such activities and conduct cannot constitute bullying and/or form the basis of a cause of action in negligence.
At the risk of being trite and repetitive, ultimately the judge’s task was to weigh all of the evidence called at trial, resolve any conflicts in the evidence (considering, as part of that process, whether some evidence accepted by the judge might make other evidence more or less probable), and then to determine whether, on the whole of the evidence accepted by the judge, the plaintiff had made out a cause of action in negligence. Acknowledging that the proceeding before the judge was no easy case, for the reasons given above, it is apparent that this did not occur.

The judge’s conclusion that the defendant was not on notice of any risk of psychiatric injury to the plaintiff

The judge was not satisfied that the plaintiff exhibited any evident signs of distress until the incident in the canteen in March 2010.[65] He was also not satisfied that the defendant was on notice that there was any risk of injury to the plaintiff.[66] The defendant’s Discrimination, Harassment, Bullying and Freedom of Association Policy, however, specifically recognised that workplace bullying ‘may cause harm, including risks to health and safety’. In the circumstances, the plaintiff’s case was not so much about whether it was reasonably foreseeable that he might suffer psychiatric harm as a result of the performance of work of a ‘relatively routine nature’[67] — but rather whether or not he was subjected to unacceptable conduct (howsoever categorised) which gave rise to an acknowledged reasonably foreseeable risk of psychiatric injury.
[65]Ibid [308].
[66]Ibid [463].
[67]As was the case in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15.
His Honour’s judgment was delivered prior to the High Court’s decision in Kozarov and this Court’s decision in Bersee. As Kozarov and Bersee explain, in a case where the risk of psychiatric injury from the performance of work is acknowledged by the parties, evident signs of distress or vulnerability on the part of a particular employee are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable.[68]
[68]Ibid [89].
In the present case, what was critical was not whether the plaintiff exhibited evident signs of distress or vulnerability, but rather whether the defendant took reasonable care to avoid an acknowledged reasonably foreseeable risk of psychiatric injury being caused by the plaintiff’s treatment by fellow workers in the workplace. It follows that, to the extent that the judge rejected the plaintiff’s claim on the basis that the plaintiff did not manifest evident signs of distress or vulnerability, his Honour erred.

The judge’s conclusion that there was no breach of duty: a robust workplace, not for the faint-hearted

Underpinning much of the judge’s reasoning was that the defendant’s workplace was a ‘robust’ one, which was ‘not for the faint-hearted’.[69] For example, after rejecting the plaintiff’s evidence in respect of one incident of alleged bullying, the judge said that even if he had accepted the plaintiff’s case on that issue:
… I would not have accepted that it was reasonable to expect the defendant owed the plaintiff a duty of care that extended to ensuring that fellow workers on the docks did not mete out to one another from time to time offensive language in their verbal interactions or form and express dislike one for the other, lest it give rise to a risk of emotional or mental injury on account of it constituting bullying. The defendant plainly recognised by its policy that offensive language may amount to bullying and thereby discouraged its use. …
It would be fallacious to suppose, for example, that any training or instruction would have reasonably and likely curtailed or eliminated the prospect of the occurrence relied on and the use of offensive language on the docks, let alone displaced the reality that in a large workforce there might be any number of reasons for the existence of personal dislike and indeed animus between workers and workers and management without an employer anticipating that the expression of it by one to another could give rise to mental injury.[70]
[69]Reasons, [45].
[70]Ibid [200]–[201].
In 1984, in McLean v Tedman,[71] the High Court said:
The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer … . And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.[72]
[71](1984) 155 CLR 306 (‘McLean’). See also, in the context of psychiatric injury, Kozarov [2022] HCA 12, [83].
[72]Ibid 313.
Borrowing from what the High Court said in McLean, we would observe that, today, the prevention of bullying or harassment in the workplace is ‘unquestionably one of the modern responsibilities of an employer’. Moreover, it was no answer to the plaintiff’s claim to say that training or instruction given by the defendant would not likely have eliminated any bullying to which he was subjected.[73] It is not at all apparent from the judge’s reasons how his Honour reached this conclusion, other than from his acceptance of the defendant’s proposition that this was a ‘robust workplace environment which was not for the faint-hearted’ making it difficult to eliminate personal animosities. That proposition had little evidentiary foundation. It simply assumed that the defendant, by putting up signs in the workplace and giving rudimentary training to its employees, had done all it reasonably could have done to eliminate bullying and harassment. Plainly, an employer has other weapons in its armoury to prevent the continuance of workplace bullying once it knows or ought reasonably to know of the existence of the same in its workplace.[74] It follows that, to the extent that the judge rejected the plaintiff’s claim on the basis that, even if the incidents and conduct alleged by the plaintiff were made out, the plaintiff failed because it had not been shown that there were steps which the defendant could have taken which would have avoided the risk of injury,[75] the judge erred.
[73]Cf Reasons, [201].
[74]Disciplinary proceedings leading to the possibility of the termination of the employment of an offending employee in an extreme case being but one example.
[75]As to which, see also Reasons, [480].

The disposition of this proceeding

It is not necessary to burden these reasons by setting out at length all of the grounds of appeal advanced by the plaintiff. It is sufficient to say that, for the reasons given above, the application for leave to appeal must be granted and the appeal allowed on at least the following grounds:
8.The trial judge erred in failing to accord procedural fairness to the plaintiff in that he did not forewarn counsel for the plaintiff that he considered … the plaintiff’s demeanour during the course of the trial effected (scil, affected) the acceptance of the plaintiff’s evidence … .
9.The trial judge erred in relying on the plaintiff’s demeanour during the course of the trial to make adverse credit findings against him.
10.The trial judge erred in not considering, taking into account or properly evaluating all of the evidence before him, including but not limited to documents tendered by the plaintiff when making findings about the conduct the plaintiff was subjected to.
11.The trial judge erred in not considering, taking into account or giving greater weight to the evidence of the lay witnesses led by the plaintiff.
19.The trial judge erred in not considering the cumulative effect of each of the events he found to have occurred … when deciding whether a duty of care was owed by the defendant to the plaintiff and whether that duty of care had been breached.
We have considered carefully whether we could, on the material put before us, determine that the plaintiff had made out his cause of action in negligence. However, we have seen none of the witnesses, and the plaintiff’s credit is hotly in issue. The proper evaluation of the plaintiff’s credit can only be undertaken by a trial judge who has the benefit of hearing and seeing the plaintiff give evidence. In the circumstances, while we accept that the evidence discloses that the plaintiff was subjected to unacceptable conduct at various times between 2007 and 2012 (if not throughout that period), we are not in a position to determine the issue of liability between the parties. More specifically, if (on a proper analysis of all of the evidence) the plaintiff is able to establish that the defendant breached a duty of care owed to him, it will be necessary to determine when that breach occurred and what injury (if any), or what aggravation of any psychiatric condition, was caused by that breach. Those matters will only be able to be determined once those matters have been fully ventilated and proper consideration has been given to all of the available evidence by a court who has the benefit of hearing and seeing the witnesses.
In dismissing the plaintiff’s proceeding, the judge dismissed both the plaintiff’s cause of action in contract and his cause of action in negligence. As we have already said, the plaintiff did not pursue those grounds of appeal which challenged the dismissal of his claim for damages for breach of contract. Accordingly, that part of his claim should remain dismissed and there should be a retrial only of the plaintiff’s claim for damages in negligence.

Conclusion

The application for leave to appeal will be granted, the appeal will be allowed, and the orders made by the judge dismissing the plaintiff’s claim in negligence and awarding costs against the plaintiff will be set aside. The plaintiff’s claim in negligence will be remitted to the County Court for rehearing and determination by that court, differently constituted.
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[2022] VSCA 285

21 December 2022