Swan v Monash Law Book Co-Operative
[2013] VSC 326
•26 JUNE 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. S CI 2011 5947
| WENDY LORRAINE SWAN | Plaintiff |
| v | |
| MONASH LAW BOOK CO-OPERATIVE (trading as LEGIBOOK) | Defendant |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 16-18, 22-24, 26, 30 APRIL, 1-3, 6-8 MAY 2013. | |
DATE OF JUDGMENT: | 26 JUNE 2013 | |
CASE MAY BE CITED AS: | SWAN v MONASH LAW BOOK CO-OPERATIVE | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 326 | |
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TORT – Negligence – Duty of care – Psychiatric injury – Workplace bullying – Scope of duty of care – Reasonable foreseeability – Employee complaints to employer of bullying conduct by another employee (manager) – Whether breach of duty - Employer failing to act on complaints.
ACCIDENT COMPENSATION - Personal injury – Psychiatric illness suffered in the course of employment – Workplace bullying – Duty - Negligence – Damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K. Judd SC with Mr Mark Carey | Slater & Gordon Ltd |
| For the Defendant | Mr R. K. Meldrum QC with Mr Conor O’Sullivan | Wisewould Mahoney |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Issues in the proceeding................................................................................................................... 1
The liability evidence........................................................................................................................ 2
Background.................................................................................................................................... 2
Evidence and credibility.............................................................................................................. 4
Events from the defendant’s perspective.................................................................................. 7
General observations................................................................................................................... 7
The plaintiff’s complaints and Legibook’s response..................................................................... 9
What occurred between the plaintiff and Mr Cowell............................................................ 19
General observations................................................................................................................. 19
Specific incidents...................................................................................................................... 23
The breakdown............................................................................................................................ 41
Expert psychology evidence........................................................................................................... 51
Evidence of Ms Mellington....................................................................................................... 52
Evidence of Dr Wyatt................................................................................................................. 56
Liability findings.............................................................................................................................. 60
Mr Cowell’s conduct................................................................................................................... 60
Did the defendant breach a duty of care?................................................................................ 62
The applicable principles........................................................................................................... 62
Findings about breach of duty.................................................................................................. 68
Brown v Maurice Blackburn Cashman.................................................................................... 75
Causation...................................................................................................................................... 78
The quantum evidence................................................................................................................... 79
The course of treatment and assessment of the plaintiff’s injury........................................ 79
The plaintiff’s evidence.............................................................................................................. 96
Quantum findings............................................................................................................................ 98
Consequences of the injury....................................................................................................... 99
Pre-existing susceptibility....................................................................................................... 100
Capacity to work....................................................................................................................... 101
Vicissitudes................................................................................................................................ 101
Assessment...................................................................................................................................... 103
Pecuniary loss............................................................................................................................ 103
Pain and suffering..................................................................................................................... 103
HIS HONOUR:
Introduction
The plaintiff claims damages for pain and suffering and pecuniary loss from the defendant for a psychiatric injury that she has sustained in the course of her employment by the defendant. She alleges that the negligence of the defendant caused that injury by exposing her to an unsafe workplace in which she was subject to bullying, harassing, and intimidating conduct.
The defendant, Legibook, operates a specialist law book co-operative from the basement of the law building at Monash University. At relevant times it employed two permanent part time workers, a manager and an assistant. The plaintiff, Wendy Swan, was employed as the assistant between 2002 and October 2008. Mr Kriston Cowell was employed as manager between 2002 and 2007. He was alleged to be responsible for the bullying, harassing and intimidating conduct.
As a co-operative, Legibook was a not for profit organisation that sold law books at discounted prices to law students. It was operated by a board of directors comprising current and former students at Monash University Law School. The chairman of the board at relevant times was Mr Paul Somers. Mr Somers had been a director of Legibook since 1997, first as a law student and, from 2001, as a solicitor.
Issues in the proceeding
The following issues remain to be resolved in this proceeding:
(1)was there conduct on the part of Mr Cowell that constituted bullying, or harassment, or abuse, or humiliation, or intimidation of the plaintiff (‘Mr Cowell’s conduct’).
(2)By reason of the occurrence of Mr Cowell’s conduct, was there conduct on the part of the defendant that was in breach of the defendant’s duty of care (as alleged and admitted in paragraph 4 of the pleadings) in that the defendant failed to take reasonable care for the safety of the plaintiff in her employment by the defendant?
(3)In what particular respect, having regard to the allegations in paragraph 5 of the statement of claim, did the defendant fail to exercise reasonable care (‘the conduct in breach’)?
(4) Was any conduct in breach a cause of the plaintiff’s injury?
(5) What is the nature and extent of the plaintiff's injury and her disabilities?
(6)Did the plaintiff suffer pre-existing psychological problems that are a cause of her injury, and if so, to what extent?
(7) In what sum should the court assess the plaintiff’s pain and suffering damages?
(8) What is the plaintiff's capacity to work?
(9) In what sum should the court assess the plaintiff’s:
(a) past loss of earnings; and
(b) future loss of earning capacity?
The liability evidence
I will deal separately with the evidence about what happened and the evidence of its effect on the plaintiff. On liability issues, the significant evidence came from the plaintiff, Mr Cowell, and Mr Somers. Also relevant is the evidence of Mr Jensen, who was initially employed as a workplace mediator, but later investigated, and reported on, the plaintiff’s complaints. I will start with my findings on some general background matters.
Background
The plaintiff, who is married, was born on 15 May 1954. She qualified as a dental nurse after leaving school but spent much of her working life self-employed in businesses run with her husband. In July 2002, she successfully applied for a position as a retail-sales assistant with Legibook. There was no formal contract of employment or applicable job description. The advertisement to which she responded stated that she would be primarily responsible for book sales and customer service. Other responsibilities would include managing returns of unsold stock, administering the co-operative’s membership database and otherwise assisting the manager alongside whom she would work.
Her position was permanent part time and although the hours of work varied during the course of the year, particularly during the peak periods at the beginning of each semester, the plaintiff ordinarily worked Mondays, Tuesdays and Thursdays from 8.30 am to 1.30 pm and Wednesdays from 12.30 pm to 5.30 pm. During the initial interview, at which Mr Cowell was present, the board members told the plaintiff that she was employed by the board to work side by side with the manager who would run the business as directed by the board.
The business operated out of small, cramped quarters in the basement of the Law Department building at Monash University. Legibook used one computer to operate a financial management and accounting software system, Quicken, and a member’s database program. The computer had some password controls. Although a generic password known to all was used for initial access to the computer, Mr Cowell had his own password for access to Quicken and the plaintiff used a personal password to access the membership database files. In 2002, the board was keen to modernise the office and create and update its membership as a computerised database. The board specifically allocated the latter task to the plaintiff.
Both Mr Cowell and the plaintiff served customers, originally using a manual till. Later, Legibook installed point-of-sale tills, networked with a new computer. Usually, Mr Cowell would reconcile the day’s takings and either he or the plaintiff would attend to the banking.
Over the first eight months of her employment, the plaintiff spent a significant proportion of her time at the computer creating the new database of 12,000 members.
Stock mostly arrived at a loading bay at the far end of the law building and was transported to the bookroom by a trolley. It was stored on shelving and stacked on available floor space. Legibook transacted most of its business at the start of each semester when students acquired their textbook and lecture notes for the subjects they were about to study. Following the initial lectures in any particular subject, students attended the bookroom to purchase what they needed or were recommended; hence the episodic nature of the bookselling. To assist, Legibook employed additional casual staff at this time. For the employees, the initial weeks of each semester were more stressful than the remainder of the working year.
Evidence and credibility
Mostly, there was not a great deal of conflict in the evidence, particularly between the plaintiff and Mr Somers. Mr Somers had a habit of contemporaneous note taking and often had no recollection beyond that recorded in his notes or emails. I found each of Mr Somers and Mr Jensen to be truthful witnesses who mostly resisted any temptation to reconstruct a recollection of events when memory or note taking may have failed them.
There was direct conflict between the evidence of the plaintiff and Mr Cowell. I preferred the evidence of the plaintiff to that of Mr Cowell whenever there was conflict between them that could not be resolved by reference to other evidence for the following reasons.
The physical environment at Legibook was far removed from that of the courtroom in which the protagonists recounted the relevant events. I watched and listened carefully to the evidence of each of the plaintiff and Mr Cowell, fully expecting that the manner in which each of them would interact with counsel would not provide direct guidance about their interactions with each other in the workplace. In some instances, it was the fact of what occurred between the plaintiff and Mr Cowell that was significant. In other instances, what was done or what was said was, of itself, relatively innocuous and its significance arose from the tone and body language of the speaker or the perception of an event that was experienced by one party or intended by the other.
Because the gravamen of many of the plaintiff’s complaints about Mr Cowell’s conduct lay more in the demeanour used, the vocal tone employed and the body language that accompanied the stated words or activity, than in the words or activities themselves, the evidence given in court was not necessarily determinative, and there were a number of other important considerations.
The affect of the plaintiff, which was described by psychiatrists reporting on their mental status examinations, was evident during the course of the plaintiff’s evidence. This was a matter that I considered in my evaluation of her evidence from the witness box. The psychiatric assessment of the plaintiff was that she suffered ‘a breakdown’ in July 2007. I am satisfied that she presented differently in the workplace before that breakdown. Mr Somers described her as having a ‘bubbly personality’, and a capacity to converse enthusiastically across a range of topics, not limited to issues at work. The plaintiff’s husband also described the plaintiff, prior to July 2007, as bubbly and lively, caring, and readily able to relate to, and converse with, family, friends and acquaintances alike.
The change in the plaintiff’s presentation since July 2007 was relevant to considering both her presentation in court and the defendant’s evidence of his perceptions of her conduct in the bookroom. Secondly, her capacity to confidently present her recollection of events in the stressful environment of a court room was affected by her injury. Third, I was satisfied that she has recounted the circumstances that occurred at work on many occasions out of court, including, first when informing Mr Somers of her concerns at the time, second when recounting events to lawyers, third, when answering the inquiries of medical treaters and examiners.
I did not find her recall in the witness box to be complete. I have made some allowance for the plaintiff’s present disability, which has affected her since 2007. I carefully evaluated various out of court statements; as such statements although admitted into evidence were not always adopted as true from the witness box. Mostly, contemporaneous emails and letters were adopted by witnesses as were some other documents that provided histories. Various statements and affidavits that were used to instruct experts were tendered without objection. These documents are evidence of the facts they record. The area of contention lay in statements recorded in medical reports that were mostly read to the court by agreement. Commonly, the plaintiff accepted that she discussed her work circumstances with doctors and others without any present recall of what she said. She did not adopt the histories recorded by doctors as complete, and could not dispute inconsistencies.
I was invited by the defendant to accept that the recorded histories accurately reflected what the plaintiff told the author at the time of examination or consultation. This submission was directed at inconsistencies and incompleteness in the recorded histories. The singular example was the absence of any reference to the book throwing incident in all of the medical histories, supporting a submission that I will discuss in due course that the plaintiff was not a credible witness and that the evidence of Mr Cowell is to be preferred.
In the absence of oral evidence from the authors, I decline this invitation, in its absolute sense, for two reasons. First, authors of medical reports balance a number of considerations when recording histories, ranging from their interest in peripheral detail to time pressures. They receive earlier reports that usually contain histories that may, or may not, be copied, at least in part. The reliability of the note taker cannot be assumed and the words of the plaintiff cannot, with confidence, be fully identified when an author has not been cross-examined about the circumstances of the consultation and the compilation of the report. Second, the plaintiff is also affected by various considerations when giving a history. Was the history elicited by leading questions, limiting the scope of revelation of all detail? Was the plaintiff’s recall affected by any of her medical or psychiatric conditions? Was the plaintiff medicated? In the present case, it is clear that the plaintiff experienced unacceptable side effects from depression medication and changed prescription several times. It is unsurprising that the plaintiff no longer recalled all of the detail that is recorded by others. I am satisfied that the plaintiff was a truthful witness endeavouring to do her best to recount the minutiae of events over a five year period.
Mostly there is no reason not to accept detail given in histories that was unchallenged or to conclude, from the failure of the plaintiff to give evidence in court, of some particular detail, that it did not occur. When evidence of a previous representation by the plaintiff giving that detail has been admitted, s 60 of the Evidence Act (Vic) 2008 is enlivened, having the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded.[1] I have had regard to that source of evidence in making my findings.[2] I am satisfied that, mostly, the medical, and other histories in evidence support the plaintiff. Where they do not, inferences that are not adverse to the plaintiff’s credit are open.
[1]Guthrie v Spence [2009] NSWCA 369, at [75].
[2]Compare State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors [1999] HCA 3; (1999) 73 ALJR 306, at [63], [94], [139].
I am satisfied that, unlike the plaintiff and Mr Somers, when Mr Cowell could not recall matters he was more likely to reconstruct events in his favour. Mr Cowell did so on two occasions of particular significance, which when weighed with the matters generally noted, caused me to reject his evidence, although at times in the witness box he appeared confident and consistent in his recounting of events. I reject his denial that the book throwing incident occurred, for reasons that I will explain in context when dealing with the evidence of that incident. I also reject his version of the events on 23 and 24 July 2007. I will first deal with matters as they occurred between the plaintiff and the board.
Events from the defendant’s perspective
General observations
First, I make some general findings. I find that from the outset the board engendered the plaintiff’s belief that she was Mr Cowell’s colleague, an employee of equal worth, entitled to be treated with proper respect and dignity. It did so because it genuinely held that view until at least July 2007. The job advertisement stated the assistant would work side by side with the manager, which was confirmed in the interview for the position. The board told the plaintiff that in the two employee bookroom, the board would give directions primarily to the manager on how Legibook was to be run. The plaintiff would have primary responsibility for upgrading the membership database. Legibook had a very old computer and very old systems, a legacy from the previous long standing manager, and the board was going to modernise. Both the plaintiff and Mr Cowell were to be responsible for implementing a better modernised service to co-operative members.
I am satisfied that the plaintiff, while believing that to the defendant she and Mr Cowell were colleagues of equal worth, also always understood that Mr Cowell was the manager and she was the assistant. She never aspired to be the de facto manager. I accept that in self-employment she had worked seven days a week for a long time and had previously engaged in managerial and administrative roles. In contrast to her role in the family business, the plaintiff intended, and tried, to go to Legibook, do her job to the best of her ability and then go home and forget about it. In that context, she accepted that the board was open to suggestions from her about the operation of the bookroom. The differing notations of this status – was Mr Cowell a manager or a colleague – made by medical practitioners taking histories, of which much was made at trial, is in this sense explicable.
The plaintiff was invited to make suggestions to the board about matters concerning workplace contracts, practices, and processes in the operation of the business of the bookroom, to attend board meetings, an annual dinner of the co-operative, and social dinners with the directors. Each was an occasion for the processes and operations of the bookroom to be discussed, and the plaintiff was never discouraged from participating in such discussions. Mr Cowell did not appreciate that the board had extended that invitation to the plaintiff as I will explain. As time went on, Legibook and its directors demonstrated to the plaintiff in various ways that she was regarded as a valuable employee who contributed to the running of Legibook and a colleague of Mr Cowell, of equal worth.
The defendant invited me to find that the plaintiff stepped above her role as an assistant and meddled in Mr Cowell’s role as manager, which entitled him to respond with instruction. The inference to be drawn was that any stress that followed on this conflict came as a result of the plaintiff’s personality and attitude and was not occasioned either by Mr Cowell’s conduct or the workplace maintained by the defendant. I do not accept that this is an accurate characterisation of what occurred. I am satisfied that there was discord between the board’s approach, valuing constructive suggestion from the plaintiff, and Mr Cowell’s more authoritarian managerial style. For the plaintiff, this discord was unsettling and confusing, productive of workplace stress. The form and nature of Mr Cowell’s reaction to that stress was inappropriate, as I will explain. That discord did not entitle Mr Cowell to be sarcastic, belittling, rude and hostile in his attitude to the plaintiff. I consider the circumstances that developed followed from the board’s failure to have proper position descriptions and workplace policies in place and to properly monitor relations between Mr Cowell and the plaintiff. Such monitoring was likely to have revealed to the board that relations between its two employees were not as they would have liked. It was not until after the first pressure period in the bookroom, the opening weeks of the first semester of 2003, that the board first learned of conflict between Mr Cowell and the plaintiff.
The plaintiff’s complaints and Legibook’s response
On 19 March 2003, the plaintiff telephoned Mr Somers and informed him of what he described to other board members as 'conflict’ that she was experiencing with Mr Cowell. She told Mr Somers that Mr Cowell’s conduct was very strange, that she had concerns about it, and that on one occasion Mr Cowell threw a book at her. On another occasion he threw a calculator. She described him as moody. She considered that he was suspicious that she was trying to move into a managerial role in the bookshop. Mr Cowell appeared to treat Legibook as his personal toy, but he made mistakes in its operation such as forgetting to pay her on time. She helped cover up these mistakes by not complaining. Mr Cowell neither acknowledged her assistance nor apologised for his mistakes. The plaintiff told Mr Somers that temporary staff had informed her they were surprised by comments that Mr Cowell had made to her. She told Mr Somers that she enjoyed her job and wanted to continue to work at Legibook.
Mr Somers promptly scheduled a meeting of the board.
The minutes of a confidential board meeting on 25 March 2003 record Mr Somers relating the plaintiff’s concerns to members of the board, adding that he was awaiting written particulars from the plaintiff. Significantly, the board minuted that Mr Cowell’s behaviour could cause damage to the plaintiff, which is evident from the observation recorded in the minutes that ‘the board and co-operative may be vicariously liable for Kris’ behaviour’ and this ‘would include Workcover claims’.
The minutes record that the board was keen to be seen to be doing something about the plaintiff’s complaint and discussed implementing written position descriptions. The board had rightly identified their own lack of clarity in identifying the respective roles of their employees as a factor in the plaintiff’s complaint. The board resolved that violent behaviour in any form was not acceptable and if it was in fact taking place the board should act to ensure that it did not continue. It resolved that three board members, Mr Somers, Mr Wong and Mr Fowles, meet with the plaintiff to discuss the substantive issues before a mediation between the plaintiff and Mr Cowell to be conducted on 17 April 2003. No such mediation was arranged.
On 28 March 2003, in response to Mr Somers’ invitation to particularise her concerns in writing, the plaintiff wrote to him raising three distinct issues. First, she submitted a list of 17 topics which can broadly be described as employment or industrial relations issues that she suggested might be discussed at board level. Second, she raised five issues, described as ‘food for thought’ about improving the organisation and future operation of Legibook’s business. Third, she addressed her concerns about Mr Cowell.
The plaintiff stated that she had been working under very strained conditions for the past months, that Mr Cowell was a person who provided information to her on a need to know basis or not at all, and that she did not wish to feel threatened or uncomfortable in her workplace. In particular, the letter stated:
I do not wish to be continually subjected to sarcasm, hostility, rudeness, and violent behaviour, threat of termination or lack of consultation within the workplace.
The plaintiff concluded the letter by stating that she enjoyed her work and felt most problems could be solved or managed to create a harmonious workplace. She added a handwritten note to her letter that ‘things are much better with Kris at the moment, so none of this is urgent’. This was a reference to the passing of the stressful busy opening weeks of first semester.
Mr Somers promptly sought comment from board members to the plaintiff’s letter. Mr Somers observed that 11 of the 17 items raised on the first issue related to employment contracts. As the drafting of employment contracts had lapsed, he proposed to revive it and have draft contracts available for board consideration. Mr Somers observed that the remaining employment issues were appropriate for discussion at board level.
During the trial it was suggested to the plaintiff that she had a tendency to inappropriately interfere in matters that were not within the role of a retail sales assistant, but there is no evidence of this attitude on the part of board members at any time before July 2007. If it were the case, as Legibook maintained at trial, that the plaintiff was exceeding the limits of her position, the board at no time encouraged the plaintiff to a different view of her role as an assistant, such as that taken by Mr Cowell. Not one member of the board commented that the plaintiff went beyond her role in making suggestions to the board about employment and operational issues. To the contrary, I am satisfied that the operation of the bookshop under its former long serving manager was thought to be somewhat stagnant and the board was not only open to, but encouraged, suggestions from its two permanent staff about improvement of services.
Board members agreed with Mr Somers’ observation that ‘suggestions that staff at Legibook are subject to workplace sarcasm, hostility, rudeness and violent behaviour, threat of termination are unacceptable’. In particular, ‘violent behaviour’ needs immediate clarification and, if warranted, some action. The board recognised that an appropriate initial response on its part was for written policies covering ‘these matters’ to be put up in the office at Legibook. Mr Somers also proposed that, subject to the board’s comments, he speak with the plaintiff acknowledging her letter, clarifying her reference to violent behaviour and advising her of the steps the board was taking.
One director, Mr Fowles, who gave evidence, agreed with the approach suggested by Mr Somers noting that, ‘sarcasm, hostility, and rudeness’ might be difficult to objectively establish but the alleged threat of termination and violent behaviour should be clarified and investigated as quickly as possible. Another director, Mr Esnault, who also gave evidence, agreed that the alleged threat of termination and violence should be clarified and if seriously alleged by the plaintiff, her account should be recorded. Yet another director, Mr Wong expressed concern that the plaintiff is ‘continually subject to sarcasm, hostility, rudeness and violent behaviour’, because she does not have to put up with any of that conduct. Mr Wong suggested that the plaintiff should ‘highlight specific instances when she has felt bullied in writing’.
From the start, the board recognised that the allegation was of bullying behaviour by Mr Cowell, including occupational violence, that it needed to be investigated, that it warranted a response, and that it could cause an injury to the plaintiff compensable as a Workcover claim. In its initial response, the board did not contemplate that its reaction in the circumstances was to be determined by the plaintiff’s choices.
On Thursday 3 April 2003, Mr Somers spoke with the plaintiff. He informed her about the board’s response and process adopted and sought further details about the reference to ‘violent behaviour’. The plaintiff confirmed that she was referring to the book throwing incident which she had mentioned in their 19 March conversation. Mr Somers recorded her response as being that she had asked Mr Cowell a question at a time when he was stressed. The question concerned a book and he picked up a book and threw it at her in a manner that required that she move out of the way to prevent it striking her. The plaintiff told Mr Somers that it did not alarm her but did surprise her and that there had not been any other similar incidents. The plaintiff described Mr Cowell as swinging into a bad mood and getting ‘crotchety’ when he is under pressure. The plaintiff said that she felt she was able to work with it.
The plaintiff explained that the reference to ‘threat of termination’ was to an incident that occurred in the first four weeks of her employment at Legibook, when Mr Cowell apparently said words to the effect that ‘if you want to keep this job you must learn the stock’.
The plaintiff made it clear that Mr Cowell’s behaviour was associated with the heavy trading period at the beginning of the semester and that since matters had quietened down Mr Cowell had been much better to work with. Mr Somers expressed his expectation that by Easter the board would have put in place, on the shop floor, written policies dealing with workplace conduct, harassment, etc. Mr Somers told the plaintiff that any repetition of the book throwing incident would be likely to trigger a formal response from the board whether or not she required it. Mr Somers asked what the plaintiff expected, stating that the board could take some sort of disciplinary measure or just take her comments on notice. The plaintiff responded: ‘Sit on it at this stage and take the comments on notice’.
When asked, the plaintiff agreed that her expectations were being met and that she felt more comfortable at Legibook. She told Mr Somers that a couple of weeks earlier she had suggested to Mr Cowell that he could not keep running her down ‘like this all the time’ and while he seemed surprised that she had spoken up, he had since that time been courteous and easier to work with. Mr Somers asked the plaintiff to keep the conversations confidential. I find that Mr Somers was somewhat relieved by the plaintiff’s attitude, which did not require difficult decisions or immediate actions.
Mr Somers’ observations on his conversation with the plaintiff were accepted and adopted by the board. I am satisfied that Mr Somers accurately recorded the plaintiff’s contemporaneous complaint. Mr Somers firstly reported that the plaintiff did not want specific disciplinary measures taken in relation to the book throwing incident as it was not something she felt was threatening. Second, Mr Cowell’s conduct had improved recently after she had spoken to him, albeit briefly. Third, the incident of greatest concern had been an isolated occurrence. Significantly, Mr Somers observed that the lack of direction from the board to Mr Cowell seemed to have led to some ‘rather arbitrary and brusque work practices in his dealings with her’. Mr Somers suggested that the position description process, employment contracts, a detailed reporting structure and workplace policy implementation should be completed and would be sufficient to address and control these concerns. He suggested that Mr Cowell would modify his conduct appropriately if the board, of its own initiative, made clear to him that appropriate workplace conduct in conformity with the board’s written policies would form part of the board’s employee assessment process.
In the context of these observations, Mr Somers recommended that Mr Cowell’s alleged conduct did not warrant any formal warning or further investigation but the board should take the action that had already been proposed to address the plaintiff’s complaints and should maintain an ongoing dialogue with both staff members individually at regular intervals. Mr Somers concluded by reminding directors to look ‘both to our legal obligations as an employer and the necessity to provide a functional workplace that accommodates all staff’. Mr Esnault, Mr Wong and Mr Fowles each acknowledged and agreed with Mr Somers’ report and his recommendations to the board.
The board failed to follow through on its recommendations and Mr Cowell remained ignorant of its general and its specific concerns, a matter to which I will return in due course.
Both Mr Cowell and the plaintiff were then invited to attend the next board meeting on 16 April 2003.
The issue arose as to whether both Mr Cowell and the plaintiff should attend future board meetings. Mr Somers was of the view that it would be preferable that both staff should attend when staff attendance was appropriate. One purpose was to show Mr Cowell what the board was apparently not prepared to directly state to him; that the board valued the plaintiff’s contribution and that Mr Cowell should not engage in conduct that marginalised her.
I am satisfied that the board continued, during 2003, to desire a co-operative and collegiate working environment between its two employees in the operation of the business. I am satisfied that, following her complaint in April 2003, the board encouraged the plaintiff to constructively contribute ideas and suggestions about the operation of the business. As a result, although both the plaintiff and the board recognised that Mr Cowell was the manager and the plaintiff was the sales assistant, the plaintiff reasonably perceived, as the board intended, that she and Mr Cowell were colleagues.
Despite its resolutions, the board never settled position descriptions for the two employee positions or workplace behaviour policies. Although the board did not consider a formal response appropriate, no informal investigation or inquiry was conducted. Neither did the board or any of its members engage in any informal contact or dialogue with Mr Cowell for the purpose of communicating the board’s expectation of behavioural standards to apply in the workplace. It was not suggested that it was impossible to do so without prejudicing the confidentiality of the plaintiff’s complaint. There was no evidence that it ever occurred to any member of the board that an informal chat with Mr Cowell about the board’s expectations in terms of the relations between employees and the issues that generally arose from the plaintiff’s complaint might have been a positive step to take.
Possibly, the board’s inaction is explained, but not excused, by Legibook’s circumstances. Its directors were volunteers, some of whom were students and others were ex-students who had embarked on legal careers. The organisation is a ‘not for profit’ co-operative. However, I am satisfied that the board specifically contemplated a risk that further or continuing conduct by Mr Cowell towards the plaintiff of the type she described might breach the board’s legal obligations as an employer. The board contemplated that if it failed to provide a functional workplace that carried the risk of damage and ‘workcover claims’ it would breach its obligation to provide a safe workplace for its employees. In evidence, Mr Somers explained his perception of this risk of damage:
What did you mean by that comment then, back in 2003? [3]---That we need to ensure that Kris's conduct isn't causing Wendy any damage.
And if it was? ---We'd have to deal with it.
Did you have any type of damage in mind?---Um – I don't recall, but physical or mental damage are the two that are the obvious ones.
So you accept that as of this date, you were at least on notice about the possibility of there being some mental damage, in your words, to one of your employees? ---Yes.
And that if in fact conduct continued, that it was a very real possibility that this could occur?---Um I'm not sure I agree with that.
All right, but you agreed that it was a possibility?---Correct.
You anticipated the possibility of it?---Correct.
I am satisfied that in this context the board contemplated more than an isolated incident of occupational violence such as the alleged book throwing incident. It had in mind more generic bullying conduct.
[3]The transcript records the year as 2005, but the context, as understood by all, was to 2003.
While referring to a need for investigation, the contemporaneous documents do not dismiss the plaintiff’s complaint as unlikely, or question her veracity. At trial, the defendant’s witnesses offered no plausible or compelling excuse for their failure to act. The defendant pointed to the expressed desire of the plaintiff that her allegations be taken on notice. The need for fairness to both employees by investigating the situation seems to have been surpassed by acceptance of the plaintiff’s ‘choice’ to accept the board’s conduct as appropriate. On any view, it was the easy outcome. But that does not explain why they failed to follow through either with the process of job position descriptions, employment contracts, workplace behaviour policies, employee review and regular monitoring of the circumstances in the workplace or with an informal response.
Despite the Easter deadline, in August 2003 the employment contracts were yet to be formalised although some progress had been made towards job position descriptions. At that time, while comforting the plaintiff that the imminent employment contracts would reinforce the workplace obligations incumbent upon Mr Cowell, Mr Somers again invited the plaintiff to comment on whether she was satisfied with the way the board was addressing her earlier complaint. The plaintiff replied that she was happy with the process and felt that her concerns had been met. She was referring to employment contracts, clear job descriptions, and bullying/harassment policies. In reality, the process with which the plaintiff was happy had again stalled and there had not been, nor would there be, any communication between the board and Mr Cowell that did, or could have, communicated to Mr Cowell the board‘s concerns, as expressed to the plaintiff, that in its view any conduct that might constitute bullying or occupational violence was unacceptable.
On 26 May 2004, the board resolved to convene annual ‘staff chats’ with each staff member on separate occasions in May or June each year commencing in 2005. The defendant’s board papers show that the staff contracts and a draft discrimination and harassment policy were on the agenda in September 2004. There was no evidence of any staff chats initiated by the board, save that the plaintiff stated that sometimes Mr Esnault or Mr Somers would check in and ask how things were going. The plaintiff would say ‘nothings really changed’. The directors would say they were working on the contracts and would ask if everything was ok at the store. They did not ask the plaintiff how she was feeling or if she was well and she didn’t volunteer information to them on those occasions.
In April 2005, the plaintiff informed the board that tensions had re-emerged between Mr Cowell and the plaintiff during the busy period at the beginning of semester. The plaintiff informed Mr Somers that she had sought to address some of these problems directly with Mr Cowell, describing him as not the easiest to talk to when under pressure. Mr Cowell agreed with her desire to discuss her concerns at a private meeting. That meeting took place over dinner at a restaurant on 21 April 2005, attended by Messrs Somers and Esnault.
The plaintiff told the directors that Mr Cowell mismanaged the ordering of texts and students and lecturers were irate. She told them that the ordering was completely in disarray and she was sad about how the beginning of semester had gone. She informed them one casual employee left in tears after one day’s work.
The plaintiff said Mr Cowell admitted his mismanagement put staff under a lot of pressure. That pressure put Mr Cowell in a bad mood that caused him to be aggressive. He was nasty to her, to the temporary staff, to students and to lecturers who inquired why stock was not available for their students. Mr Cowell told the plaintiff to say in response to these inquiries that stock was coming in soon, and not say texts were out of stock, as that response might draw the attention of lecturers to his mismanagement, which created a risk that the directors would learn of it. Mr Cowell expressed the pressure he was experiencing from the lack of stock by nasty comments to the casual staff like ‘you're not working quick enough’, and ‘you have to work out where these books are’. The plaintiff stressed that the angry, and aggressive, manner in which she and the causal staff were spoken to was her particular concern. The response that he required that she give to inquiries as to the availability of stock made her feel like she was lying, and that students would think she was incompetent. The plaintiff was upset and stressed by the atmosphere. She saw a casual staff member cry because of the manner in which Mr Cowell spoke to her.
The board members told the plaintiff Legibook would implement policies to make things work better. They said they understood she was very unhappy but that this should not happen again as the board would put the contracts into place that would clarify the employees’ roles. The plaintiff could not recall whether the board acted after this meeting, but putting contracts in place and workplace policies in the bookroom did not occur and why it did not remains unexplained.
On 24 July 2007, during the busy period at the start of second semester, Mr Somers received two phone calls. The first was from the plaintiff at approximately 12.45 pm and the second was from Mr Cowell at approximately 1.10 pm. Mr Somers learned that there had been major conflict between the plaintiff and Mr Cowell. The plaintiff had left the work site in a distressed state complaining of workplace bullying and Mr Cowell was accepting that he had allowed a situation to get out of control and had responded inappropriately. The events of this day precipitated for the plaintiff a breakdown exposing symptoms of depression and anxiety. About two months later, Mr Cowell resigned as manager of the bookshop.
Apart from the failure to implement contracts, job descriptions and policies, there was other evidence of dilatoriness by the board. The task of ordering new bags for packing purchases for customers was taken from the plaintiff and Mr Cowell by a director, but the board would then take 12 months to deal with that issue. The plaintiff could have resolved that matter in a few weeks. The plaintiff perceived that although the board were quick to say what would be done, they were slow to act, and patience was required.
Before setting out my findings about the events in July to October of 2007, I will set out my findings about what occurred between the plaintiff and Mr Cowell from 2002 to 2007.
What occurred between the plaintiff and Mr Cowell.
General observations
What is relevant when examining the impact of Mr Cowell’s behaviours is that there developed a significant inconsistency between the plaintiff’s perception of the board’s view of her worth to Legibook and her perception of Mr Cowell’s view of the same matter. I have expressed my findings about the former. For evidence about the latter, I now turn to the private dealings between the plaintiff and Mr Cowell. I am satisfied that this inconsistency in perceptions, which was not of the plaintiff’s making, not only contributed to the stress she experienced in the workplace, but magnified the stress that the plaintiff experienced. Mr Cowell’s conduct, when viewed in isolation as individual events, can appear innocuous, but that perspective is inappropriate.
The plaintiff alleges that Mr Cowell created an intimidating atmosphere that he knew she found oppressive. Mr Cowell knew that the plaintiff felt intimidated and uncomfortable in his presence, but he didn’t care. Motive is irrelevant. Mr Cowell had a particular attitude, flowing from his personality. It is probable that Mr Cowell either positively disliked the plaintiff or simply did not care for her personal idiosyncrasies. In the crowded, cramped bookroom, which was mostly a private space for the two of them, Mr Cowell felt no compunction to treat the plaintiff with the level of respect that is reasonably expected and commonly afforded between two colleagues working together in such a space. It is out of personality conflict of this sort in that confined and isolated space, which cannot be fully analysed in a courtroom, that the repeating pattern of Mr Cowell’s conduct towards the plaintiff became unreasonable.
I am satisfied that Mr Cowell’s conduct towards the plaintiff was initially disrespectful, arrogant, and uncaring. Mr Cowell saw no need to be polite to the plaintiff, but he did see a need to be controlling and to assert that he was in charge. I accept the plaintiff’s evidence of receiving his anger and other bad moods. It was evident that he has some need to manage these emotions. I think it probable that Mr Cowell reacts poorly to stress and it will appear that a number of the critical incidents occurred at times when he was under stress. I am satisfied that Mr Cowell is well able to be even tempered and pleasantly disposed to others and commonly is. He could do so in the presence of his employers. He did so in the witness box. There was insufficient evidence for a finding that he is a person who is even tempered and pleasantly disposed to others in all circumstances, as there was no evidence generally of his character. I am satisfied that it was in the crucible of stressful times in the close cramped bookroom that a need arose for Mr Cowell to manage his anger and his moods, but he failed to do so appropriately.
Some general observations of the plaintiff’s character are also appropriate. The plaintiff was perceived by Mr Cowell as being too voluble, chatty, or loquacious. She did not so appear in the witness box, but she has suffered a significant psychiatric injury for the past five and a half years and is not the person she was. I accept that the plaintiff was voluble, chatty, or loquacious at work. It was her natural character, well intentioned and friendly, traits that had been reinforced by her years of employment in caring occupations and retail service when self-employed. In the early days of her employment this characteristic of her personality was evident. She asked questions, made conversation and gave suggestions about how the shop should be managed. This was a reflection of not just her personality but also her perception of what her employer expected.
For his part, Mr Cowell didn’t care much for conversation with the plaintiff. He liked, when not busy serving customers, to work in a room filled by talk radio. Mr Cowell preferred to listen to 774 ABC local radio than to the plaintiff’s conversations. The plaintiff said that she felt ignored from the beginning and I accept that a pattern developed in their relations where Mr Cowell largely ignored the plaintiff. When he did communicate with her, he did so in a manner she found discourteous and unpleasant. I do not think that Mr Cowell lacked the social skills to be courteous and pleasant to the plaintiff in the bookroom. What he lacked was the control that he thought he was entitled to exercise over her conduct and performance at work. I am satisfied Mr Cowell never embraced the notion that in the small and confined workspace, operating the business of a co-operative, he and the plaintiff were colleagues – equals – as the board perceived them to be.
The plaintiff is an intelligent and competent person, well able to readily adapt to the simple business processes and procedures that were required to operate the Legibook business. At trial something was sought to be demonstrated by a comparison of Mr Cowell’s experience in managing larger retail bookstores in the United Kingdom with the plaintiff’s want of experience in bookselling. The evidence did not disclose any respect in which Mr Cowell’s experience in the UK positively assisted the development of Legibook or any respect in which the plaintiff’s experience in the retail nursery industry, without bookselling experience, was, in any way, detrimental to Legibook. On the other hand, Mr Cowell’s experience was in much larger workplaces where he had risen to be a manager of up to 50 employees. His management experience appeared to be in a workplace relations setting that was far removed from what he found at Legibook and his response to the plaintiff undoubtedly drew on that experience. Mr Cowell was authoritarian and instructional. He was the manager, she was the assistant. He neither needed to pay heed to her suggestions nor explain his disinclination to give them any consideration let alone implementation.
I have already noted that the defendant contended for a defence from these circumstances. The personal interaction between the plaintiff and Mr Cowell was merely personality conflict that arose from the plaintiff’s insistence that, although Mr Cowell was ‘the manager’, they were colleagues. The plaintiff’s injury was caused by the plaintiff’s failure or refusal to acknowledge the hierarchical structure in the workplace. Mr Cowell perceived his role as controlling and instructional. He managed the business, not just its assets, stock and procedures, but also its employees. Mr Cowell was properly entitled to insist on acceptance of his role as the organising force in the business and his decisions without question. The conflict that arose when these different attitudes combined with the different natures and personalities of each of them led to the plaintiff’s injury. I will, in due course, say a little more about this contention.
One significant feature of the plaintiff’s character is that she likes things done properly and naturally looks for more efficient or better ways of completing tasks, perhaps something of a perfectionist or a little obsessive. This feature of the plaintiff’s personality grated on Mr Cowell and, given that he had no capacity to enjoy casual conversation with the plaintiff, was a significant part of their social interaction. What resulted was that Mr Cowell’s private interaction with the plaintiff was not polite or respectful and that became a pattern.
Having made these general observations by way of introduction to the evidence of specific incidents, I turn to the evidence of the plaintiff and Mr Cowell of such matters.
Specific incidents
A couple of months after starting employment at Legibook, an incident occurred that the plaintiff identifies as the start of Mr Cowell’s bullying behaviour. Mr Cowell required that she memorise the booklists. In any particular semester, the law school taught certain core and elective subjects and students purchased their required books for their subjects at the start of the semester. It was not the task itself that was the issue, although it was unclear whether memorising the booklists was ever any more than ‘busywork’ allocated to an employee in a controlling way. Rather, it was the fact of the task and the way the task was given to her. Mr Cowell said he would test the plaintiff and would sack her if she didn’t demonstrate that she knew the booklists. The plaintiff described the surprise imposition of this testing process under a threat of dismissal as very stressful. Mr Cowell raised his voice and went red in the face when he told her of the task – she described him as ‘nasty’ to her - and the plaintiff felt incompetent without understanding why.
The plaintiff responded by taking the booklists home and studying it in her own time. Her husband was moved to inquire about this activity, surprised at what she was doing and why. I accept his evidence that she was quite surprised and considerably upset by the threat to sack her. Mr Swan said it appeared that she had been ‘sort of put down rather harshly’.
Mr Cowell’s evidence was that, in a quiet time in about November 2002, he politely said:
This is an ideal opportunity to learn, you know, see if we can get you learning exactly where everything is because, and these were my words, that in March, when the semester started, you would be really struggling if you don't know exactly where to lay your hands on each book because there'd be 100 people waiting and all you've got to do is just grab all the books and bring them up and serve them as quickly as possible.
Asked what she made of the exercise he had set her, Mr Cowell said ‘Fine. I think she picked up a lot out of the exercise ... she seemed to know where things were a lot better than I thought before’.
Setting the task was not denied, but Mr Cowell put a different complexion on it. Mr Cowell commenced employment with Legibook in July 2002 and had not yet experienced a first semester rush in the bookshop. There was some reference to his experience in bookshops in the UK that also sold academic titles but I am not persuaded that that experience prompted the setting of the task. Mr Cowell reconstructed this evidence, and I prefer the plaintiff’s account of the way in which the incident occurred as the probable explanation of what passed between them.
What Mr Cowell’s version of this event reveals, in my view, is his attitude. He thought the plaintiff needed an ‘opportunity to learn’ and he wanted to ‘see if we can get you learning exactly where everything is’ and ‘she picked up a lot out of the exercise’ and was ‘a lot better than I thought before’. Mr Cowell’s reconstructed version shows his lack of respect and authoritarian attitude towards the plaintiff, but what he actually did reveals much more. Mr Cowell employed a threat of dismissal. He knew he did not have the right to dismiss his assistant. That he made that threat implies that he did not care to work with the plaintiff. While he did, he intended to assert control and power over her. It would be about 6 months later, and following their first stressful first semester book rush, when the plaintiff learned that Mr Cowell did not have the right to have made that threat. The assumption of that power of dismissal by Mr Cowell thus affected the plaintiff for a significant time.
Before 2002 passed, there was a second incident. Again, for reasons that I will explain, I accept the plaintiff’s version of this incident, although it is not found wholly within her evidence from the witness box. In short, Mr Cowell threw a legal text book at the plaintiff, who had to duck to avoid being struck on the head by it.
I have already set out how Mr Somers recorded the plaintiff’s description of the book throwing incident in March 2003. In evidence, the plaintiff said:
Can you explain the circumstances of that to his Honour?---I do not know. I - this is something I've really blocked in my memory and even my psychologist or psychiatrist hasn't been able to get this out. Um, all I remember is a book being thrown and I ducked and I was horrified at the thought of someone throwing something at me in the workplace ‘cos it had never happened before. I'd never experienced this sort of, um, intimidation and bullying and harassment.
In the book throwing incident were you having a conversation with him?---With - with the book throwing?
When he threw the book at you?---I can't remember. I really can't remember. I
- - -You saw the book coming?---I just saw the book coming and I ducked, and I was just horrified. I can't even remember what it was over. There's just been so many incidences.
… and if you hadn't have ducked, where was it - - -?---At my head.
- - - directed?---At my head.
you don't recall seeing him - seeing it come out of his hand I take it?---No. I wasn't expecting it.
So why do you say it was thrown at you? What were the circumstances that
- - -?---Because he was - I was talking towards the counter and he was at the counter and he just threw it directly at me. We were sort of straight in line with each other.How far away from him were?---Probably about 15 feet.
Did you have a conversation with him, why did you do that?---Oh, I would have. There was a lot of times where I would say to him that's inappropriate behaviour, I really don't like it. I was always a really strong woman. Sorry.
Sorry, I just missed what you said then, you're always a very?---I was always a really very strong woman, and I thought that I would be able to handle him without having to take it any further. I really like my job there and I thought I would be able to handle someone who was abusive and bullying and I'd never really experienced it before, but I still felt that I would be strong enough to work in the situation and just go home and not have to worry about the place when I got home. And I didn't want to have to leave the job because I loved the job and I loved the campus and I loved the other people that I'd made friends with there, and I didn't see why I had to be pushed out by a bully.
The absence of any mention of the book throwing incident of 2002 to medical witnesses after 2007 is a matter of some significance. The defendant suggested that the event did not occur at all, as Mr Cowell said in evidence, and that the absence of reference to it in the recorded histories confirms Mr Cowell’s version of the event, but I do not accept this suggestion. Significantly, the plaintiff said she had blocked this incident out of her memory, which may contribute to an explanation for her not having mentioned it to doctors. In addition to the need to express care in dealing with what is recorded by others who have not given evidence as being the plaintiff’s explanation of events, in this case it must be borne in mind that the plaintiff was told by the defendant before she ever saw any of these medical witnesses that her complaint about her unsatisfactory working relationship with Mr Cowell had been validated and she reasonably perceived that he had been dismissed. I will come to those events in due course. One might infer that once told that the manager had been dismissed by the employer for bullying, a medical witness might not be that interested in recording the minutiae of a long ongoing pattern of behaviour. Thus a single incident, from 2002, but the only incident of occupational violence, passes unrecorded in her histories.
Consequences of the injury
The plaintiff’s injury has been extremely onerous and deleterious. In addition to the primary symptoms of her Adjustment Disorder/Depressive condition, continuing anxiety and depression, that have been described by the medical witnesses, the plaintiff has somatic symptoms including temporomandibular joint dysfunction with bruxism and tinnitus, chronic insomnia, pain, including migraine and headache, anxiety, a disabling sensitivity to antidepressants, high blood pressure, and debilitating rashes and skin irritations that have all required separate diagnosis, and continue to require separate ongoing management and treatment. I have already described the consequences for the plaintiff as reported by medical experts.
From the plaintiff’s own perspective, I accept her evidence of the consequences for her life of her illness. It was supported by both her husband’s evidence and the medical evidence. Legibook contended that I should be reluctant to accept this evidence for want of support from other witnesses, such as other members of the plaintiff’s family, who were not called. I reject this contention.
I am satisfied that the plaintiff remains substantially compromised in most aspects of her life, which has been reduced to one of isolation and disconnection from her family and friends and from the world around her. The plaintiff has surrendered her personal independence, lost her confidence, and lost her capacity to take interest in and derive pleasure from the stimulus in life. This has been a substantial loss of enjoyment of life, with much pain and suffering, both mental and physical.
Pre-existing susceptibility
Although it appeared during the trial that there was an issue whether the plaintiff suffered pre-existing psychological problems that were a cause of her injury, the defendant did not ultimately press a submission to this effect. However, I will make the following observations. The plaintiff always bears the legal onus of establishing on the balance of probabilities that the defendant’s negligence materially contributed to her illness. As I have stated above, I am satisfied that this onus has been discharged. For the defendant to successfully contend that the plaintiff’s illness and her current presentation was primarily caused by ‘constitutional factors’, it must first discharge an evidentiary onus of proving such constitutional factors existed and would have produced similar symptoms. This submission fails at this first hurdle. In view of the findings I have already made concerning pre-existing constitutional factors, I do not consider it necessary in the circumstances to make any allowance by way of a general contingency for such constitutional factors either as the primary cause of her depressive condition or as being likely to be perpetuating her illness. I am satisfied that the plaintiff’s natural character and personality made no contribution to her illness and is not a factor that warrants any reduction in the damages that are required to compensate her.
Capacity to work
The plaintiff’s evidence, which I accept, was that she has no capacity for work because she ‘got stressed and anxious under pressure’. She could not tolerate any loud noise or abusive language and readily went to pieces or became teary. She also felt incapacitated by her bruxism, with consequent severe headaches and tinnitus, and by her eczema.
I am satisfied that the plaintiff’s feelings that she has no work capacity are borne out by the expert assessments. The issue was complicated by the circumstances of the plaintiff’s return to work program. In the early stages both the plaintiff’s treating practitioners and the defendant’s medical assessors considered that the plaintiff could successfully return to work. As I have found, the plaintiff’s return to work was poorly organised and exacerbated her condition. There was no separate, or new, injury arising from those circumstances. So much is clear from the medical evidence.
Although the failure of the return to work program did not immediately dissuade medical practitioners from the view that the plaintiff might return to work in the future, those medical practitioners have now been persuaded by the unrelenting progression of her symptoms, particularly through her poor reactions to medication and the somatic depression and anxiety symptoms that she has developed. Over time, a number of medical specialists have revised their optimistic assessments that the plaintiff might return to work.
I accept the opinion of Dr Sutcliffe that the plaintiff no longer has a capacity to perform her former, or any other, employment and is likely to suffer a want of capacity to work into the foreseeable future. Ultimately, each of Dr Epstein, Dr Kornan, Ms Perrett-Abrahams, Dr Selvaratnam, Dr Risely, Dr Jager and Dr Farnbach came to share the view of Dr Sutcliffe that the plaintiff has no realistic capacity for work in the future.
Vicissitudes
The defendant submitted that I should not adopt anything less than 15% discount for vicissitudes, submitting that the proper allowance lay in the range up to 20%. The plaintiff suggested that such a discount was not warranted on the evidence. In Club Italia (Geelong) Inc v Ritchie[29] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually of the order of 15% while emphasising that each case depended on its own facts.
[29](2001) 3 VR 447, 464 [57].
In assessing the extent to which gross economic loss is to be discounted, the court is required to take into account a range of possible future occurrences both adverse and favourable to the plaintiff, having regard to the evidence. The contingencies that are usually considered include sickness and accident, loss of, or improvement in employment prospects, or the chance of some other misfortune (or fortune) that may appear in the circumstances. Further, a long prospective period for an assessment, or where the plaintiff’s future prospects are not illuminated by evidence of opportunities past and present, may warrant a larger contingency.
The plaintiff expressed a clear view. She did not ‘believe in retirement. I think you die if you retire. That’s my opinion. I think you should always work as long as you possibly can and that’s one of the things that’s been so upsetting to me is now that I don’t have the capacity to work’. The plaintiff had worked all of her adult life including on a part time basis when bringing up her family while her husband continued to work. Although her preference has been for part time work since she and her husband disposed of their businesses, her pecuniary loss claim is assessed on this basis, assuming employment until retirement at 65. I see no reason not to accept this expectation. The plaintiff was able to find part time employment at a later stage in life and has demonstrated a capacity to undertake further study or workplace training when needed.
Prior to her illness, the plaintiff was generally fit and active, enjoying good health. There was no evidence of underlying medical conditions that might adversely affect her capacity to work during the next decade. The defendant submitted that the plaintiff and her husband had already made significant adjustments to their lifestyle, scaling back from operating small businesses and in a comfortable financial position the plaintiff may not have chosen to continue in employment.
Other than its status as the standard discount, I see no basis in this case to apply a discount rate of 15% and I see no reason to apply a greater discount. However, I am satisfied that some discount for vicissitudes should be made and I will apply a discount factor of 10%.
Assessment
Pecuniary loss
The parties agreed that subject to my findings concerning capacity to work and the appropriate discount for vicissitudes, the plaintiff’s past loss of earnings totals $156,570.38. The plaintiff’s future loss of earning capacity to age 65 is $151,093.34 which I discount for vicissitudes to $135,984.
I assess the plaintiff’s pecuniary loss in the sum of $292,554.38.
Pain and suffering
In Willett v Victoria,[30] the Court of Appeal overturned a jury assessment of damages in a claim by the plaintiff/appellant for damages for psychiatric injury caused by workplace bullying. The court, by majority, considered the jury’s award to be manifestly inadequate. The court determined that once liability has been determined, the starting point for the assessment of damages for pain and suffering and loss of enjoyment of life must be that it was common ground that the plaintiff had suffered a serious mental disturbance of which the respondent’s conduct was a cause. The question to then be determined was the proper compensation for the pain and suffering and loss of enjoyment of life caused by the defendant’s negligence.
[30][2013] VSCA 76 (12 April 2013).
The majority agreed with recent observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King,[31] that over the course of time society has come to place greater value on the loss of enjoyment of life and the experience of pain and suffering than it did before. Salaries too have greatly increased. The court said:
Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But in as much as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?[32]
The court noted that awards of damages have markedly increased:[33]
[O]ver the last 10–20 years, awards of damages have increased significantly; not just in personal injuries cases, but also in other areas of litigation. For example, last year [2010] a jury in this state awarded a barrister more than $600,000 in damages for defamation and that amount seems not have been regarded as unreasonable…At all events, it appears that damages awarded by juries in cases of defamation are capable of providing us with at least some guidance as to the reasonableness of the amount awarded in this case for loss of enjoyment of life and pain and suffering. And we bear in mind too that the law today is not “more jealous of a man’s reputation than of his life and limb”.
[31][2011] VSCA 447 (22 December 2011).
[32]Ibid, [177] (footnotes omitted).
[33]Ibid, [180], [182] (footnotes omitted).
I consider that the severity of the plaintiff’s illness as described in the medical evidence that I have set out above was evident when she gave evidence. I am satisfied that the impact of the plaintiff’s illness upon her since 2007 and into the foreseeable future has been, and will continue to be, severe. The plaintiff’s own evidence of the impact of her illness upon her is consistent with that assessment. Her medication and somatic symptoms substantially aggravate her suffering. I bear in mind the general considerations drawn from Willetts and Amaca.
I will award the plaintiff damages for pain and suffering and loss of enjoyment of life in the sum of $300,000.
I will hear counsel as to the form of the judgment and on costs.
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