Temos v Expert Security & Communications Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-04058

CHRISTOPHER TEMOS	Plaintiff
v
EXPERT SECURITY & COMMUNICATIONS PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	17-21,24-27 September 2018; 1,2,15,16,18 October 2018
DATE OF JUDGMENT:	19 November 2018
CASE MAY BE CITED AS:	Temos v Expert Security & Communications Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 1857

REASONS FOR JUDGMENT
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Subject: NEGLIGENCE

Catchwords: Common Law Damages – Stress – Development of psychiatric injury - Whether development of injury was reasonably foreseeable
Cases Cited:Box Hill Institute of TAFE v Johnson [2015] VSCA 245; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Hegarty v Queensland Ambulance Service [2007] QCA 366; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Larner v George Weston Foods Ltd [2014] VSCA 62; Nationwide News Pty Ltd v Naidu [2007] 71 NSWLR 471; Taylor v Haileybury [2013] VSC 58

Judgment: The plaintiff’s claim is dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Fitzpatrick with Ms K Bradey	Kofi Osei & Associates
For the Defendant	Ms Á Magee QC with Ms L Glass	Wisewould Mahony

HER HONOUR:

Introduction
1.Mr Christopher Temos, the plaintiff, is 41 years old. He completed Year 11 at secondary school and then completed a four-year apprenticeship, qualifying as a B grade electrician. Once qualified, he worked for various electrical companies in domestic and then industrial/commercial electrical work. He has been in a relationship with his partner, Mary Petrovski, for 16 years. He bought a house in 2008. They have no children. His father, a builder/carpenter, died of cancer about 11 years ago, and his mother, formerly a machinist, is aged 65. He has two older brothers. He worked with the defendant between 2005 and 2006 installing electronic security systems, but left because he wanted to resume doing more general electrical work. Between 2006 and 2010,[1] the plaintiff worked for various people as an electrician and also renovated his house for approximately one year in 2007-2008.
[1]Transcript, 104-107
2.Between 1 March and 17 September 2010, the plaintiff was employed by the defendant as an installation technician to perform a number of tasks relating to the installation of electronic security systems at a number of primary and secondary school buildings (“the sites”). One such site, which was managed by Watpac Pty Ltd (“Watpac”), was Albert Park Secondary College (“APSC”). The plaintiff’s work at the sites involved “roughing-in” cabling, and performing other tasks at ceiling height using ladders. During this period, the defendant employed: Stacios[2] Assimakopoulos as general manager; Michael Dowling as a human resources manager; John Laoumtzis as a project manager; and Daniel Zammit as a project manager. Daniel Zammit, was responsible, among other things, for the day-to-day supervision of the plaintiff.
[2]Mr Assimakopoulos is referred to throughout the proceeding as ‘Tas’ or ‘Tass’.
3.The plaintiff finished roughing-in at APSC in late August 2010.[3] The plaintiff’s employment ended on 17 September 2010, when he was made redundant. He issued unfair dismissal proceedings and four of the statements[4] made for the purpose of that proceeding were tendered at the trial before me. The unfair dismissal proceedings settled. I have considered the statements made in that proceeding only to the extent that they relate to the issues in this proceeding. In deciding this case, I have had regard to all of the evidence and to the parties’ written and oral submissions.
[3]Transcript, 942
[4]Fair Work Australia statement of Daniel Zammit dated 31 January 2011 (Exhibit 16); Fair Work Australia statement of Michael Dowling dated 31 January 2011 (Exhibit 15); Fair Work Australia statement of Stacios George Assimakopoulos dated 31 January 2011 (Exhibit S) and an undated Fair Work Australia statement of Christopher Temos (Exhibit P).
The issues
4.The plaintiff’s claim in this case is that the defendant has breached the duty of care owed to him as an employee by imposing unreasonable work pressure upon him during this period.
5.The plaintiff alleges that the defendant was negligent in[5]:
[5]See [20] of the Plaintiff’s Third Further Amended Statement of Claim dated 18 October 2018 (Statement of Claim).
(b) Failing to support the plaintiff as promised with reasonable assistance of co-workers to undertake the work duties he was required to perform which were jobs appropriate for at least two full-time employees;

(e) Failing to provide proper equipment by way of scissor lift;
(f)Placing unreasonable pressure upon him and targeting him personally by way of intimidating remarks concerning delay costs that he would be responsible for;
(j) Physically intimidating the plaintiff by way of Tass Assimakopoulos abusing him and following him in an intimidatory manner to his vehicle on 17 September 2010;
(k) Allowing the work conditions of the plaintiff to become so oppressive upon his mental health that it was reasonably foreseeable and likely that he would become psychiatrically unwell if it was allowed to continue;
(l) Failing to properly supervise Daniel Zammit and Tass Assimakopoulos;
(n) Failing to take adequate steps to remove the plaintiff from the workplace when it became or ought to have been obvious to the defendant that the plaintiff was not coping mentally;
(q) Failing to adequately train its personnel including Daniel Zammit, John Laoumtzis and Tass Assimakopoulos.

6.Finally, the plaintiff alleges that from about late May 2010, the defendant knew, or ought to have known, that the plaintiff was “a person vulnerable to sustaining recognisable psychiatric injury”.[6] In this regard, he relies on conversations he alleges he had at various times with Daniel Zammit and on one occasion with John Laoumtzis.
[6]See [17] of the Statement of Claim.
7.The plaintiff alleges that as a result of the defendant’s negligence, he has suffered from psychiatric injury and that, due to his psychiatric injury,[7] he is permanently incapacitated for all employment.
[7]The injuries are pleaded as follows: major depressive disorder; adjustment disorder with mixed and depressed mood; severe skin disorder (lichens simplex chronicus); scarring on the forehead resulting from surgical removal of a lesion; and mental reaction to the scarring and his skin condition.
8.The defendant admits employing the plaintiff during the relevant period, but denies any liability to the plaintiff in negligence. Further, the defendant alleges contributory negligence by the plaintiff in failing to look after his own health. That said, at trial the defendant did not really dispute that since leaving his employment the plaintiff has suffered from a serious psychiatric condition and is permanently incapacitated for any employment. The plaintiff’s treating psychiatrist, Associate Professor Michael Wong, treated the plaintiff regularly between 15 August 2011 and October 2018. On 15 August 2011, Dr Wong diagnosed an Adjustment Disorder with Anxiety and Depressed Mood.[8] His most recent report dated 9 August 2018 expresses the same opinion, noting that the plaintiff has been tried on different antidepressant medications and continues to tolerate Valdoxan, that he continues to suffer skin lesions which wax and wane with his mood, requires ongoing psychological support, and is permanently incapacitated for all employment.[9] At trial, Dr Wong conceded that he was not told by the plaintiff of a number of other possible stressors since leaving work, but reaffirmed his opinion that the plaintiff’s employment continued to be a cause of his current condition.
[8]Exhibit E
[9]Exhibit B
9.The most recent medico-legal psychiatric opinion from Dr Weissman upon which the plaintiff relied, is that the plaintiff is suffering from work-related chronic major depressive disorder with anxiety and traumatisation features of moderate severity and is permanently incapacitated for all work.[10] The most recent psychiatric opinion tendered by the defendant was that of Associate Professor Peter Doherty, who opined on 14 January 2017 that the plaintiff was suffering from a major depressive disorder and a somatic symptom disorder (a preoccupation with his skin).[11]
[10]See his report dated 2 May 2018. Dr Weissman provided three earlier reports 7 July 2015, 1 September 2016 and 30 November 2016 which are part of Exhibit N.
[11]Exhibit 25
The witnesses
10.Before making findings about the circumstances of the plaintiff’s employment, it is necessary to say something about the plaintiff as a witness and the parties’ witnesses as witnesses.
11.I turn to the plaintiff. I have made due allowance for the plaintiff’s psychiatric condition and the difficulties he experienced when giving evidence. I accept that the plaintiff has been, and remains, emotionally invested in his current claim. I also accept that during the relevant period he felt under pressure at work. However, it must be said that I was less than impressed with the plaintiff as a witness, for a number of reasons.
12.The most serious credit issue arises from the fact that on 1 October 2018, during the course of the trial, the plaintiff sent two SMS messages to Ms Amy Joyce, his former treating psychologist over a number of years, and a witness who, though not called to give evidence, produced her clinical notes which were tendered at the trial. The text messages asked her to “downplay notes pls”, in particular the “focus on my relationship and my issues with my family which has long since settled and very little on wat [sic] actually happened with me at work, the stress, anxiety, my skin, all of which I am still struggling with today”.[12] This request is to be seen against the fact that, in his evidence, the plaintiff had disputed the accuracy of those notes, but that his counsel, by later agreeing to the tender of her notes to the Court, subsequently accepted their accuracy. For this reason, where there is a conflict between the plaintiff’s evidence and the clinical notes of Ms Joyce, I prefer the latter. During his evidence in Court, I note that the plaintiff was prepared to accept large parts of her records as accurate and correct but only asserted that they were inaccurate insofar as they were not helpful to his current claim.
[12]Exhibit U
13.Another matter of concern is the plaintiff’s denial of any pre-existing skin problems. The evidence before the Court is to the effect that he sought treatment for an infected skin lesion on his face and lip in August and November 2007 and received antibiotic and cortisone cream;[13] that he was treated in early 2008 for inflamed scar tissue in between the eyes and was referred to a dermatologist;[14] and that he received medical attention in August 2009 for his skin lesions.[15] Moreover, when the plaintiff first attended doctors in 2010 with regard to his skin condition, he attributed his skin condition to wearing a hard hat. It was only in 2015 that the plaintiff first asserted that there was an initiating scratch or cut to his forehead at work.
[13]Exhibit 22
[14]Exhibit 18
[15]Exhibit 23
14.Furthermore, the plaintiff has provided selective histories to treating practitioners and medico-legal specialists which did not mention other non-work related stressors (such as his relationship difficulties, being sued by his brother, facing criminal proceedings in 2015).[16] During the trial he also repeatedly and somewhat doggedly denied the accuracy of matters recorded in medical histories. For example, he denied telling Dr Sidhu about smoking cannabis daily.[17] Dr Sidhu gave evidence and referred to his notes and said that the matters recorded therein were matters reported to him by the plaintiff at the time of the various consultations.[18]
[16]Transcript, 153-163 and 599-607
[17]Transcript, 311
[18]Transcript, 888-889
15.There are other, more minor examples of the same approach. The plaintiff refused to acknowledge that he had been out of work for a number of months prior to commencing work with the defendant in March 2010, before finally conceding that he had been unemployed for the first 3 months of 2010. He insisted that Mr Assimakopoulos approached him to return to work for the defendant in 2010 but this assertion is contradicted by the evidence of a series of voice and text messages from the plaintiff to Mr Assimakopoulos asking for work.
16.Finally, in examination in chief, the plaintiff emphasised or exaggerated the nature and extent of the tasks required of him, and then in cross-examination moderated those claims. For instance, he conceded that putting material away safely was daily standard practice, which occupied the last 30 minutes of each day despite intimating that he alone was required to perform these tasks.[19] He similarly complained that he had to park off site when working at Kangan Batman TAFE,[20] then conceded that all other workers at that site also had to park off site.[21]
[19]Transcript, 187
[20]Transcript, 188
[21]Transcript, 348
17.Notwithstanding these issues, however, I accept that the plaintiff was genuine in describing his subjective experience at work during the relevant period. I also accept his evidence as to his symptoms, lifestyle and restrictions since the cessation of employment in September 2010.
18.I refer briefly to the plaintiff’s witnesses. Ms Petrovski, the plaintiff’s partner, gave very detailed answers in examination in chief and appeared able to recall the content of conversations which took place many years ago. In contrast, under cross-examination she was vague and unable to recall matters. She stated that since she has known the plaintiff he had never really been out of work and would not concede that he was unemployed for a period prior to commencing employment with the defendant; even though the plaintiff said that for a year until June 2008 he worked mostly on renovating the home in which they were living. She was unable to recall whether the plaintiff had a skin condition prior to working for the defendant. She was able to comment on the plaintiff’s demeanour in July 2008 and December 2009. However, she was not present at any of the plaintiff’s sessions with Dr Sidhu or with Ms Joyce, and so cannot give evidence as to what the plaintiff told those practitioners. Nevertheless, I accept Ms Petrovski’s evidence about the plaintiff recounting to her what Mr Assimakopoulos said to him about delay costs. I also accept her evidence concerning the plaintiff’s current domestic, recreational and social functioning.
19.Mr Matthew Harrington was called to prove that normal construction industry practice for roughing-in was for staff to work in pairs. His evidence was of limited usefulness and I refer to it below.
20.I found Mr Fitzsimons to be a straightforward witness. He agreed that he was not present or did not hear some of what passed between the plaintiff and Mr Zammit on 2 September 2010, but he gave clear evidence of what the plaintiff said he had been told by Mr Assimakopoulos concerning delay costs.
21.I turn to the defendant’s witnesses. I found Daniel Zammit, John Laoumtzis and Michael Dowling to be very credible witnesses for the defendant.
22.Mr Dowling was a credible witness whose evidence was consistent in chief and on cross-examination. He held a neutral position at the meeting on 17 September 2010 which he carried into his evidence in the trial.
23.Mr Zammit, in particular, gave a fulsome account of his relationship with, and supervision of, the plaintiff during the relevant period. He made concessions where appropriate, and his evidence was considered and consistent. He demonstrated sensitivity to the plaintiff’s predicament, noting that the plaintiff had told him, after the incident with Ozzie, that he preferred to work alone,[22] but nonetheless passed on the plaintiff’s requests to him for assistance at APSC to Mr Assimakopoulos.[23] Where his evidence conflicts with that of the plaintiff, I prefer his evidence.
[22]Transcript, 955
[23]Transcript, 967
24.I found Mr Assimakopoulos generally to be a straightforward witness. He denied offering the plaintiff a company car or a mobile phone, but agreed that the arrangements were that the plaintiff was to work mainly at APSC and would be supplied with assistance there when needed. He vehemently denied threatening the plaintiff over the phone about delay costs in late August or early September 2010,[24] but later said he did not recall phoning him, and would not have said the alleged words. I have dealt with this particular allegation at paragraph 55. He denied physically intimidating the plaintiff on 17 September 2010 outside the defendant’s office after a meeting with the plaintiff. Whilst Mr Assimakopoulos was not cross-examined about this allegation of physical intimidation, I note that his evidence as to what occurred after that meeting on 17 September 2010 is consistent with that of Mr Dowling.
[24]Transcript, 787
The pleadings
25.The plaintiff’s pleadings were amended a number of times during the course of the trial. Even as amended, the Statement of Claim remained difficult to navigate. The basis for and scope of employment, which is crucial to understanding the content of the duty owed and any steps the employer might reasonably have been required to take in the circumstances, is not clearly set out in the pleadings. In addition, the breach of duty and the exact particulars which comprise that breach, are also difficult to follow. Finally, the particulars of paragraph 14 which alleges subjection of the plaintiff by the defendant to “significant stress and mental pressure” are not pleaded (apart from compendiously in paragraph 20(k)). Nevertheless, I have done my best in the circumstances to address each of the allegations made by the plaintiff.
The scope and content of the duty of care
26.At paragraph 19A of the Statement of Claim, the plaintiff alleges:
The defendant at all material times was under a duty to the plaintiff to take reasonable care for his safety by providing a safe place of work for him, and proper and safe plant and appliances for his work, and a proper and safe system of conducting his work (including the provision of assistance of a co-worker) and proper supervision of such work.

27.The plaintiff was hired by Mr Assimakopoulos after oral discussions between them in February 2010. In his Statement of Claim, the plaintiff pleads, as a material fact, that during those discussions he was told that he would “have the assistance of a co-worker whenever he needed it” and that “he would be provided with a work vehicle and phone”. At trial, the plaintiff insisted that he was promised a car and a phone.[25] In relation to the provision of a scissor lift at APSC, I note that neither in his pleadings nor in his evidence at trial was it alleged by the plaintiff that he was promised that the defendant would provide a scissor lift to him at APSC during the relevant period. The plaintiff did not plead a breach of contract in his Statement of Claim. However, to the extent that it is necessary to describe the nature of the employment relationship, I indicate my findings below as to what the employment arrangements were to be.

[25]I note that in his Fair Work Australia statement there was no allegation that the plaintiff was promised a car and/or phone by the defendant.
28.The plaintiff agreed at trial that he was employed full-time to work at APSC but that following those works he could be sent to sites elsewhere.[26] He said that Mr Assimakopoulos told him that he would work alone at APSC but would get assistance whenever he needed it and requested it.[27]
[26]Transcript, 112-113
[27]Transcript, 114-115
29.At trial, Mr Assimakopoulos’ evidence was to the effect that the plaintiff was hired to work a standard 40 hour week at APSC, but that the arrangement was that he could be asked to attend to work at other sites depending on the company’s needs. He said that he did not recall whether they discussed whether the plaintiff would get help if he needed it but said it was possible that they did so. He said that the company’s policy was that “on every job” when people need assistance “we give them assistance”.[28] His evidence was to the effect that the plaintiff should have been given assistance if he requested it. He said that it was up to the relevant project manager to decide whether a worker needed another person to assist them on a site. However, Mr Assimakopoulos denied promising the plaintiff a car or a phone.[29] He said that in 2010 no company employees were provided with phones.[30] He said that company cars were provided only to project managers and service technicians, and not to installers like the plaintiff.[31] The plaintiff’s counsel did not pursue this aspect of the alleged representations, concerning the provision of a car or phone, in his final address.
[28]Transcript, 926
[29]Transcript, 753
[30]Transcript, 753
[31]Transcript, 753
30.I am not satisfied on the evidence that the plaintiff was promised a work car or a phone when he was engaged to work for the defendant. I find that the plaintiff was hired to work a standard full-time week on the understanding that he would work at APSC but could be asked to attend other sites as directed.
Was the plaintiff subjected to unreasonable work pressure?
31.The particulars of the alleged “unreasonable work pressure” are pleaded at paragraph 14 of the Statement of Claim as follows:
The Plaintiff
i. Was required to maintain an unsustainable rate of work likely to prove impossible on his own;
ii. Was deliberately intimidated by Tass Assimakopoulos who told him that should the work not be completed on schedule at the Albert Park Secondary College, and there be delay costs imposed on the defendant, that he would have to pay those personally;
iii.Frequently whilst working at sites other than Albert Park Secondary College, would explain the need for and get the consent of Mr Zammit to return and complete a task the following day at that particular site he would be then promptly pressured by phone by Tass Assimakopoulos to stay on and finish that day, so as not to return for a partial day to that site[32];
iv. When unfit for work in early September 2010, he was subjected to numerous text messages pressuring him to return to work.
[32]I note there no allegation that he was required to work excessive hours. The evidence is that the plaintiff only worked in excess of 8 hours on any given day on 11 occasions and, at maximum, 11 hours on one of those occasions.

32.I will deal with each of these allegations in turn.
(i) The plaintiff was required to maintain an unsustainable rate of work likely to prove impossible on his own
33.In order to make sense of this allegation, it must be broken down into segments.
34.The plaintiff’s evidence is that he worked mostly alone at the APSC site,[33] and that the job there was bigger than at the other sites because at APSC a new school and gymnasium were being built, whereas at the other sites, particularly the primary schools, the electrical work was being performed in existing buildings. The plaintiff agreed that although he started work at APSC on 1 March 2010, by 24 March 2010 when he was asked to work at Beaumaris North Primary School, he was aware that he would be asked to work at other sites apart from APSC. He worked at the other sites as requested. He agreed that at APSC at times he had help and at times he worked alone.[34] He acknowledged that at least two persons were sent to APSC to assist him at various times.[35] The first person, Nick Alevropoulos, was a technician who attended at APSC on 3 May 2010, but did not want to work off a ladder and wanted to work from a scissor lift. The second person was an apprentice named Ozzie. The plaintiff agreed that Ozzie worked with him at APSC on 5 or 6 days.[36] The plaintiff also acknowledged that on occasion when working at other sites (Diamond Creek[37] and Laurette[38]) he was assisted by a second worker (Rick[39] and Dimitri[40] respectively).
[33]Transcript, 189
[34]Transcript, 189
[35]Transcript, 189
[36]Transcript, 204
[37]Transcript, 378
[38]Transcript, 378
[39]Transcript, 378
[40]Transcript, 379
35.The defendant’s witnesses[41] agreed that the plaintiff completed the majority of roughing-in at APSC on his own, but insisted that the plaintiff was provided with assistance at APSC on occasion from other workers, including Sam Chor,[42] Nick Alevropoulos,[43] Ozzie, and, by quite a few other tradesmen, in the final weeks of his employment to complete the necessary works.[44] The defendant agreed that at the other, smaller sites, to which the plaintiff was sent from time to time during the six months of his employment, it generally assigned two workers to complete those jobs. The evidence of Mr Zammit was that the primary school jobs had short deadlines and for this reason two workers were allocated to it, whereas, when the plaintiff was employed to work at APSC, the defendant considered that one person could perform the work. There was also evidence from Mr Zammit to the effect that the plaintiff told him he preferred to work alone and that Mr Zammit tried to accommodate this preference.[45] Mr Laoumtzis agreed that the work at APSC could have been performed more efficiently and more quickly if two workers had been allocated to work at that site,[46] but insisted that assistance was provided to the plaintiff from time to time.[47]
[41]Transcript, 1002 (Mr Zammit)
[42]Transcript, 816
[43]Transcript, 816
[44]Transcript, 957
[45]Transcript, 955
[46]Transcript, 830
[47]Transcript, 816
36.As to the rate of work performed by the plaintiff, from the time sheets submitted by the plaintiff and other documents tendered by the defendant, it is clear that during the period of his employment the plaintiff primarily worked from 7am to 3:30pm, 40 hours per week over 5 days. He had a rostered day off twice per month. His pay advices reveal that during the relevant period he worked a total of 22.3 hours overtime.[48] On this basis, it could not be said that the plaintiff was overworked. The plaintiff also conceded that he would sometimes decline to stay back on site for an hour or so when offered overtime work.[49]
[48]Exhibit 33
[49]Transcript, 361
37.The heart of the plaintiff’s complaint appears to be that, when first employed, he was told that he would be working at APSC, and that after this he would work at other sites. In fact, however, while he was assigned to do the roughing in work by himself at APSC, he was, on 47 days, required to work at other sites instead.[50] This led him to feel pressured when returning to APSC because he was not always up with the pace of the building works there, which was controlled by others.[51]
[50]Exhibit 17
[51]However, given the limited number of overtime hours worked, I am not satisfied that the rate of work, in the sense of being performed on his own, was or was likely to be unsustainable.
38.I turn to the suggestion implicit in this allegation, that it was impossible for the job that the plaintiff was asked to do at APSC to be performed by one worker alone.
39.Mr Harrington, a construction manager at Court Services Victoria, gave expert evidence on behalf of the plaintiff. He spoke to a report he prepared dated 5 May 2018.[52] He said that he visited APSC on 16 and 19 March 2018, and was given the relevant specifications and plans. He said that in relation to roughing-in the cabling at that site, two workers working together would be more effective and lessen the risk of damage to cabling which could occur when cable became snagged. Looking at the scope of the defendant’s work to be undertaken at APSC, he considered that the plaintiff would have been assisted by having a second person on site. He agreed that the roughing-in of a cable in a ceiling of a class room on the same level of the building, and running that cabling back to an access control panel on the same level of the building could be done safely by one person, but would take more time. He agreed that the need for efficiency derived from the timeline or deadline involved. He agreed that he was never told that assistance was provided to the plaintiff from time to time at APSC. He did not identify what aspect of the work at APSC required the use of a scissor lift.
[52]Exhibit Q. As a result of my ruling on objections from the defendant, the report was heavily redacted and his evidence limited to the non-redacted parts.
40.I consider that his evidence falls considerably short of establishing an Industry Code of Practice regarding the provision of two workers.
41.Mr Laoumtzis said that the decision to assign a second person to assist with roughing in “depend[s] on the project”.[53] He gave the example of a current project which is “the largest building in Melbourne” and where “we have one technician there that roughs in, who does everything on his own”.[54] He said that a second person was not needed if a worker was working off a ladder, as the plaintiff was doing at APSC. He had no recollection of the plaintiff speaking to him about work pressure but did recall one occasion when he was doing a site walk through at APSC that the plaintiff asked for assistance to pull cables between floors. His recollection was that Nick and Sam were sent to help the plaintiff on that occasion.[55]
[53]Transcript, 830-831
[54]Transcript, 832
[55]Transcript, 841-842
42.In relation to specific matters concerning the plaintiff’s employment, Mr Zammit on numerous occasions adopted what he said in his Fair Work Australia witness statement dated 31 January 2011.[56] In that statement, in relation to the issue of the plaintiff working alone, he stated, at paragraph 8:
In response to paragraph 6 I say the Applicant did work on his own for some of the time he spent at work both because other employees of Expert Security had requested not to work with him and because the applicant himself asked if he could not work with other people. For example, following an incident involving Nick Alevropoulos and the Applicant on a work site in May 2010, Nick Alevropoulos requested not to work with the Applicant. I refer to the document titled “Report Re Staff Incident between Chris Temos and Nick Alevropoulos on site at Albert Park Secondary College” dated 5 May 2010 (document 1 from the Respondent’s list of documents). In approximately July of 2010, one of the Respondent’s project managers, received a call from Frontline Apprentice Employment Agency requesting that an apprentice by the name of ‘Ossie’ (who had been working with the Applicant) be transferred to another job. I was advised by our project manager that he had been advised by the representative of Frontline that Ossie had reported being spoken to by the Applicant in an aggressive manner and did not feel comfortable working with the Applicant. I spoke to the Applicant about the matter at the time who became upset and in fact began to cry, and said to me “I don’t want to work with other people as its going to get me into trouble.” The Applicant asked me if he could work on his own as he did not want anybody else to be around him. I attempted to comply with the Applicant’s request wherever it was practicable to do so however I always attended the worksite the applicant was working on to check how he was going approximately every second day. Further, on a number of occasions during the Applicant’s employment I arranged for two or three other employees to attend the work site the Applicant was working on to assist with the completion of work as the Applicant had fallen behind.
[56]Exhibit 16

43.In that statement, in relation to the plaintiffs concern about meeting project deadlines at APSC, and working overtime, he stated, at paragraph 9:
In response to paragraph 7 I say that the Applicant did complain to me on occasions about not being able to complete his work within project deadlines. I advised the applicant that if he arrived at work on time and did a full day’s work then that was all that was expected of him. Our employees work from 7.00 am each morning to 3.30pm or 3.00pm (if the employee chose to forgo a break during the work day). On occasion I did ask the applicant if he could work back and do some overtime if a project was running behind. Working back to perform overtime might typically involve working an extra half an hour or an hour to get a job finished. The applicant seldom worked overtime, very often in my recollection choosing not to when requested. His usual response to a request to work overtime was “I’ll see how l go” however he would then leave the work site at 3.00pm. The Respondent did not suffer any repercussions as a result of choosing not to work overtime and it was always his choice whether he did so or not.

44.Mr Zammit said in his evidence at trial that the APSC job was a large job.[57] He said that the defendant was undertaking works at approximately 90 schools over an 18 month period and normally allocated two workers for smaller school projects because they had fixed deadlines.[58] At the primary school sites, the roughing-in would take between 1 and 3 days, and the fit off one day. This was because they had to complete 5 schools in a given week. He said that two workers were not allocated to APSC because it was a big school, there were a lot of tasks and therefore it was not moving as fast.[59] Mr Zammit said that towards the end of the job at APSC in August and September 2010, the intensity and urgency of the work had increased as they were running out of time[60] and therefore he and Mr Assimakopoulos arranged for more people to work on the APSC site to help finish the job.
[57]Transcript, 952
[58]Transcript, 951
[59]Transcript, 952
[60]Transcript, 957
45.Mr Zammit said that the decision to allocate numbers of workers to specific jobs was taken by him in conjunction with Mr Assimakopoulos. He said that he and other project managers would tell Mr Assimakopoulos what they needed in terms of manpower, and he would tell them which workers to take and from where. Mr Zammit would then text the particular worker to inform them where to attend the next day. Mr Zammit said that any job could be done by a person working alone, depending on how fast the job needed to move along. Mr Zammit denied that the plaintiff’s workload during the relevant period was very heavy and said that his workload was no different from that of any other of the defendant’s employees.[61]
[61]Transcript, 997
46.Mr Zammit agreed that the plaintiff complained to him on occasion about not being able to complete his work at APSC within the project’s deadlines. Mr Zammit was unsure what the deadline was, but recalled that there was a big push to finish the job in September 2010. Mr Zammit said that he told the plaintiff not to worry about deadlines but to do his own work, and that if the job fell behind, it was not his fault.[62] Mr Zammit agreed that the plaintiff asked him for assistance at APSC on some occasions, and Mr Zammit said that he told the plaintiff he would pass on this request to Mr Assimakopoulos, which he did. He said it was for Mr Assimakopoulos to decide whether a second worker would be sent to assist the plaintiff. There was no evidence that the plaintiff cried to Mr Zammit when making such requests for assistance.
[62]Transcript, 999
47.Mr Zammit gave evidence, which was not challenged, that, after the incident with Ozzie, the plaintiff told him “he didn’t want to work with anybody because, you know, he was going to get himself into trouble or have another incident”.[63] Mr Zammit also said that towards the end of the APSC project, there were “quite a few more guys there” and said that he worked there as well.[64] However, Mr Zammit agreed that it was probably true that the plaintiff did most of the roughing in work from March to September 2010 at APSC on his own.[65]
[63]Transcript, 955
[64]Transcript, 957
[65]Transcript, 1002
48.Mr Fitzsimons gave one example of assisting the plaintiff with a task but otherwise his evidence was restricted to his observations on 2 September 2010, which is dealt with below.
49.I am not satisfied on the evidence that this allegation is made out.
(ii) The plaintiff was deliberately intimidated by Tass Assimakopoulos who told him that should the work not be completed on schedule at the Albert Park Secondary College, and there be delay costs imposed on the defendant, he would have to pay those personally
50.The plaintiff’s evidence[66] was that when he was at APSC, Mr Assimakopoulos rang him in late August 2010 or thereabouts and told him words to that effect.[67] The plaintiff said that he saw Mr Fitzsimons at APSC on the day of the alleged conversation with Mr Assimakopoulos and told Mr Fitzsimons about it.
[66]Exhibit P (Fair Work Australia statement of Christopher Temos), [10]
[67]The plaintiff was unable to be specific about the date but his counsel submitted that it was likely to have occurred between 31 August and 2 September 2010.
51.Mr Fitzsimons’ evidence was in slightly different terms. He said that in early September 2010, when he was walking through the APSC site he saw the plaintiff on the ground in the gymnasium trying to put switches together.[68] He thought the plaintiff looked unwell, asked the plaintiff how he was, and the plaintiff showed him the rashes on his forehead and on his stomach. The plaintiff broke down a bit and told him that his employer had threatened him over the telephone with delay costs if he “didn’t get the job done on time”.[69]
[68]Transcript, 677
[69]Transcript, 677
52.The plaintiff’s partner, Mary Petrovski, gave evidence that the plaintiff told her that Mr Assimakopoulos had told her that if the work at APSC did not finish on time, costs resulting from that would be taken out of his wage.[70]
[70]Transcript, 702-703
53.Text messages from Mr Assimakopoulos to the plaintiff on 27 August 2010 indicate that the company was under pressure from the builders to complete the job at APSC. Those texts were in the following terms[71]:
mate. You know YOUR job needs to be finish NOW u let me down I can not rely on u anymore
…
Chris where are u mate please understand the im under alot pressure to get this job completed from the builders call me
[71]Exhibit J

54.Mr Assimakopoulos could not recall sending these messages to the plaintiff, nor being under pressure to have the job done at APSC. He acknowledged that he received an email from Andrew Murray of Watpac on 31 August 2010 advising that Watpac would no longer have a presence on site at APSC as of 6 September 2010.[72] He agreed that this meant that the defendant would have to pay $150 per hour to Watpac (for site supervision) after that date. He agreed that he would not have wanted to pay that sum to Watpac.[73] He denied threatening the plaintiff over the telephone in the terms alleged and agreed that it would have been inappropriate of him to do so. In any event, no delay costs were imposed on the defendant.

[72]Exhibit T
[73]Transcript, 786
55.Given the reservations I have expressed above in relation to the plaintiff’s evidence, I consider it possible that the plaintiff misinterpreted what was said by Mr Assimakopoulos and relayed that misinterpreted account to Mr Fitzsimons and Mary Petrovski. However, for present purposes, I indicate that I accept that Mr Assimakopoulos made the impugned comment to the plaintiff.
56.I will return to this issue when considering the particulars of negligence.
(iii) Frequently whilst working at sites other than Albert Park Secondary College, the plaintiff would explain the need for and get the consent of Mr Zammit to return and complete a task the following day at that particular site he would be then promptly pressured by phone by Tass Assimakopoulos to stay on and finish that day, so as not to return for a partial day to that site
57.It was the plaintiff’s evidence that, at the end of the day, he would speak to Mr Zammit to provide him with an update regarding where the job was up to and that if the job was not finished, the plaintiff was asked to stay back and finish it. When the plaintiff said he could not do that, he would receive a call from Mr Assimakopoulos asking why he was unable stay back and finish the job.[74] Mr Assimakopoulos[75] and Mr Zammit[76] could not recall these phone calls. It was Mr Zammit’s evidence that if a job took two days it took two days and that he only ever expected people to work and do what they could in the time they had.[77]
[74]Transcript, 244
[75]Transcript, 765-766
[76]Transcript, 1025
[77]Transcript, 1025
58.It is clear from the documentary evidence[78] that the plaintiff worked overtime on 15 days.[79] In this context, I am unable to be satisfied that the plaintiff’s workload was excessive or unreasonable.
(iv) When unfit for work in early September 2010, the plaintiff was subjected to numerous text messages pressuring him to return to work
[78]Exhibit V
[79]The plaintiff’s timesheets (Exhibit V) indicate that he worked overtime at the following sites: Syndal South Primary School; Boronia West Primary; Diamond Creek Primary School; Kangan Batman TAFE; Mornington Primary YVE; Pender Grove and APSC.
59.It is common ground that the plaintiff suffered a cut or scratch on his forehead on 26 March 2010 while working at a primary school.
60.The medical attendances by the plaintiff during the relevant period are outlined below.[80]
[80]These are taken from the joint chronology provided during final addresses on 19 October 2018
61.On 29 and 30 March 2010, the plaintiff was on sick leave. He attended Dr Nassios at Rochdale Medical Centre on 29 March 2010 in respect of a soft tissue injury to the low back and in relation to a skin condition. He was prescribed Fucidin ointment for the skin condition.
62.The plaintiff was on sick leave on 4 May 2010 for unspecified reasons. His absence followed an incident the previous day with Nick Alevropoulos who had been sent to APSC to assist the plaintiff but who refused to work at ceiling height off a ladder.
63.In mid to late May 2010, the plaintiff developed a rash on his forehead. On 16 May 2010 he attended Dr Ahmed at Northend Medical centre in relation to his skin condition.
64.On 2 June 2010 the plaintiff was on sick leave.
65.The plaintiff said that some time in May or June 2010 he cried in front of Mr Zammit. The plaintiff’s hands were cracked and bleeding. He told Daniel Zammit that he was struggling physically, needed help on site, and showed him his forehead.[81] He said that Daniel did not tell him to see a doctor or go home.[82] He said that Mr Zammit told him he would sort it out. After two or three days, when he did not receive help at APSC, the plaintiff rang Mr Laoumtzis and complained of his workload.
[81]Transcript, 201-202
[82]Transcript, 202
66.Mr Zammit said that in around June 2010 the plaintiff showed him a rash on his head and asked for time off to see a specialist. Mr Zammit agreed that the plaintiff left early that day. He did not recall the plaintiff asking him for help with work on that occasion. Mr Zammit said that he had not seen the plaintiff’s forehead before that day because he wore a baseball cap under his hard hat.
67.Mr Laoumtzis agreed that he visited the APSC site on a number of occasions during the relevant period to give his view on how the site was running when Mr Zammit was busy on other projects, and did a number of site walks with the plaintiff. He did not recall any conversation with the plaintiff about work pressure, but recalled noticing on one occasion that the plaintiff had a scab or rash on his forehead. He felt that the plaintiff was doing a good job at that site and told Mr Zammit that he was happy with the way things were running there.
68.Mr Laoumtzis said that on one occasion when he visited the site the plaintiff said he would need assistance for specific tasks such as for scissor lift work and for pulling cables between floors. Mr Laoumtzis recalled two occasions when he sent people to the site to assist the plaintiff,[83] but could not recall when those arrangements were made.
[83]He named Sam Chor and Nick Alevropoulos
69.On 17 July 2010, the plaintiff attended Dr Hussain at Mill Park Super Clinic, in relation to a “blotchy rash on fore head” and received a repeat script for Kenacomb cream, which had proved effective in the past.[84]
[84]Exhibit 23
70.On 21 July 2010, the plaintiff was on sick leave. Mr Assimakopoulos sent him a text message at the end of the day asking the plaintiff if he would be returning to work the following day, and the plaintiff responded that he would, that he “just got back from the doctors now and gotta stop taking all medication cause of the throwing up so ill be good 4 tomorrow”.[85]
[85]Exhibit J
71.There were no further absences on sick leave until 3 September 2010.
72.In his Fair Work Australia statement, the plaintiff stated, at paragraph 9:
At the start of September 2010 I was working on a job at Albert Park Secondary College in Danks Street. I had been working on this from the time I started working for the Respondent. By this time I was working on this job I was feeling on an enormous amount of pressure from work. I had developed a skin condition due to the work environment and I wasn’t able to overcome the skin condition due to the work conditions remaining the same and the stress which I was feeling due to my work sores.

73.The plaintiff stated, at paragraph 11:
Mick Fitzsimon was the Occupational Health and Safety Representative on that job. I felt that the work load I was under was unbearable and I was getting no support from the Respondent. I sought Mick out and spoke to him about my concerns, I was quite upset by the end of our conversation.

74.At paragraph 12, the plaintiff stated:
A meeting was arranged by the site foreman Chris Martin, Mick and my direct supervisor Daniel Zammit to discuss my situation. The meeting took place on 2 September 2010 at the site. At the end of the meeting Mick said that I should leave the site immediately and seek medical advice. He added that he would not allow me to return to work on the site until I had a doctors certificate clearing me to return to work.

75.At the trial, the plaintiff gave evidence at different points about what happened at APSC on 2 September 2010. Early in his evidence in chief he said that on that day he had been on a ladder, but was then crying on the third floor of the south building. The plaintiff then recalled that Mr Fitzsimons approached him while he was on the floor, said that he had been watching the plaintiff struggle, and spoke to the site foreman, Chris Martin. Mr Zammit was called to attend the site.[86] The three men, excluding the plaintiff, had a meeting. The plaintiff said he was later called into the meeting and told to leave the site and only come back with medical clearance. The plaintiff claimed he recalled Mr Zammit saying something similar had happened before and Mr Fitzsimons saying it should not happen again. The plaintiff said that he went home and did not work the next day, being Friday 3 September 2010.[87] Later in his evidence in chief, the plaintiff said that Mr Zammit spoke to him following that meeting and confirmed that management were under the impression he was capable of doing the job and “didn’t realise” the “overall effect that it’s had on me”. The plaintiff later said he could not precisely recall whether his conversation with Mr Zammit occurred on 2 September 2010 or a different date.
[86]Transcript, 216
[87]Exhibit V
76.The plaintiff said that since he was told by the defendant to see a doctor, they knew he was unwell and should not have expected him to go to work. He said that when he received text messages from Mr Zammit on 3, 4, and 5 September 2010 inviting him to attend at various sites on 4 and 6 September 2010 he felt he was being harassed. He felt compelled to go to work and worked on 6, 7, 8, 9 and 10 September 2010.[88] He said that he saw his doctor, Dr Nassios, on 7 September 2010 and was given a certificate to the effect that he was “under treatment for a medical condition” and unfit for work for the period 3 to 8 September 2010,[89] that he gave that certificate to Mr Zammit and that Mr Zammit told him that “Tas won’t be too happy about this”.[90] For that reason, he worked on 9 and 10 September 2010. The plaintiff worked through until his final day of employment with defendant on Friday 17 September 2010, except for Monday 13 September 2010 when the plaintiff had a rostered day off.[91]
[88]Transcript, 46-47; Exhibit V
[89]Exhibit P
[90]Transcript, 225
[91]Exhibit V
77.In cross-examination, the plaintiff agreed that Mr Zammit may have spoken to him on the phone on and that the plaintiff may have told him he was going to see the doctor, but did not recall telling him that he could work on Saturday 4 September 2010 after getting a blood test.[92] He agreed that the texts from Mr Zammit on 3 and 4 September 2010 were not demanding anything of him but just inquiring of his availability. He did not recall whether he told his employer on the Friday and Saturday (3 and 4 September 2010) that he was too sick to see a doctor, or to work. He agreed that the message sent to him on the evening of Sunday 5 September 2010 was a standard message inviting him to attend a particular site (Laurette) the next day.[93] He did not recall whether he telephoned Mr Zammit to discuss the Laurette job or whether Mr Zammit asked him to bring the plans for Laurette which the plaintiff had in his car. He agreed that he saw Mr Zammit on site at Laurette on Monday 6 September and went home early, but denied that Mr Zammit encouraged him to see a doctor. He agreed that his medical certificate from Dr Nassios was faxed to his employer on 12 September 2010, but insisted that he “showed it” to Mr Zammit some time after he got it, maybe on 8 September 2010, near APSC.[94] He insisted that he was forced by Mr Zammit to work on two days covered by the medical certificate that is 7 and 8 September 2010, but agreed he did not return to Dr Nassios to obtain a further certificate in respect of the period between 9 and 17 September 2010, when he worked.
[92]Transcript 395-396
[93]Transcript, 399
[94]Transcript, 397-398
78.Mr Fitzsimons’ evidence was that when he saw the plaintiff in a distressed state he was concerned about the plaintiff using a ladder while upset,[95] and told him to see a doctor[96] because of the sores on his forehead and because he was crying.[97] Mr Fitzsimons then contacted Watpac’s site manager, Chris Martin,[98] and Daniel Zammit was contacted and went to the site. Mr Fitzsimons was not present later when Daniel Zammit spoke to the plaintiff.
[95]Transcript, 683
[96]Transcript, 679
[97]Transcript, 677
[98]Transcript, 678
79.Mr Zammit’s evidence was that his memory of the events of early September 2010 day was fresher in January 2011 when he made his Fair Work Australia statement. At paragraphs 13-16 of his Fair Work Australia statement, he referred to the relevant events in the following terms:
[13] In response to paragraphs 11 and 12 I say that on a day which could have been 2 September 2010 I arrived at the Albert Park College work site at approximately 9am to find the Applicant sitting on the floor in tears staring at a tool box. I began to talk with the Applicant but after a short time Mick Fitzsimon, an employee of Watpac Constructions, the builders with the overall contract for construction of the site, and as I understand it the Occupational Health and Safety representative for the site, entered the room we were in. The Applicant got up and started to work however both Mick and I could see the Applicant was very upset and in a state where he should not be climbing ladders and using tools. We both asked the Applicant to stop however the Applicant refused and continued to work. Mick asked the Applicant to stop work and suggested he go home. Again the Applicant continued to work insisting that if he didn’t his job would be in danger. I then made it clear to the Applicant that it was OK to stop and go home or at least go to the smoko shed to calm down and get himself together (as I felt he should not be driving). Eventually the Applicant stopped work and hurried away. I then went with Mick to the site office and had a chat with Chris Martin, the site supervisor and Mick Fitzsimon. Mick Fitzsimon reprimanded me and said you can’t keep bullying this guy and I responded that he was not being bullied and that he (Mick) had only ‘seen one side of it’. After this discussion I went looking for the Applicant but could not find him or his ute anywhere. I tried calling him but he did not answer my calls. I assumed the Applicant had left and advised Mick I could not find him (the Applicant). I returned to the work site and continued to do the work the Applicant was meant to be doing to get it finished. Approximately thirty to sixty minutes later the Applicant returned and seemed to have regained control of his emotions. He started packing up his tool box and I said to him “You need to get some help to get better. I can’t give you the help you need, you need to speak to a doctor.” Shortly after Mick Fitzsimon returned and the Applicant said he would go home. This was Thursday afternoon. Before the Applicant left I asked him if he would be coming in tomorrow? The Applicant replied “I’ll see how I go”. I certainly do not recall Mick Fitzsimon saying to the Applicant that he would not allow the Applicant to return to work on the site until he had a doctors certificate clearing him to return to work. I refer to paragraph 14 of Mick Fitzsimons’ statement and note that this claim by the applicant is not substantiated by Mick Fitzsimon’s statement.
[14] In response to paragraphs 13,14 and 15, I say I do not recall the applicant calling me on 3 September 2010 and saying that his doctor had given him a medical certificate and that he would not be back to work for a week. I note that the medical certificate the Applicant attached to his statement and referred to as CT-1 is dated 7 September 2010 which indicates (in the absence of any other explanation) the document was issued by Dr Nassios on 7 September 2010, the following Tuesday.
[15] In response to paragraph 16 I say I deny that the Respondent notified me he was off work due to illness during the period alleged. I refer to the facsimile document titled ‘medical certificate’ from the Rochdale Medical Centre dated 7 September 2010 (document 2 from the Respondent’s list of documents) which indicates the medical certificate was faxed to the Respondent’s offices at 10.49pm on Sunday September 12 2010. The first time I saw this certificate, and became aware that the Applicant had been diagnosed as being unfit for work over the period 3 to 9 September 2010 was in approximately December 2010.
i. In response to paragraph 16.i I say I may well have sent the Applicant a text on Friday 3 September 2010 asking if he was going to come into work the next day (Saturday) in light of the Applicant’s advice on Thursday that ‘”I’ll see how I go”. I recall that on either Thursday 2 or Friday 3 September I had a conversation with the Applicant during which he advised me he had a blood test on Saturday morning and would come in after that.
ii. In response to paragraph 16.ii I say I do recall sending a message on or about Saturday 4 September which may have said words to the effect of “if you’re able to come in today that would be good” as the Applicant had previously informed me he was going to come in that day after having a blood test.
iii. In response to paragraph 16.iii I say I do recall sending a message while I was in the process of going around testing ‘PIRs’ as I needed to ask the Applicant why one that showed on the plan was not in the place indicated. It was a matter that could have been easily clarified on the phone. If it simply had not been installed I would have then installed it. If there was some other reason, for example it had been installed elsewhere I needed to know. I do not really recall if I did or did not get a message in response from the Applicant. I do recall having a live telephone conversation with the Applicant on or about Saturday 4 September during which the Applicant advised me that he was not right to come in and that his girlfriend kept saying to him he was an idiot because he kept saying to “you guys” he was right to come in when he should be taking days off. I believe I may have asked the applicant at the end of this telephone conversation whether he would be right for Monday and he responded either “yes” or “I’ll see how I go”.
iv. In response to paragraph 16.iv I believe I would have sent the text message on Sunday 5 September about attending Laureate the following day following my telephone conversation with the Applicant on or about Saturday 4 September and in the absence of any actual notification from the Applicant that he was on sick leave.
v. In response to paragraph 16.v I say I met the Applicant on Monday 6 September 2010 and I recall the Applicant advised that he did not feel well. I said to him “if you are not well then go home”. The Applicant did express his concern then that if he did not work he would lose his job. I assured him that he would not get ‘the sack’ for being sick. I advised the Applicant that if he was sick he should go to the doctors to get a certificate to cover the period he could not work because of illness. Despite this conversation the Applicant stayed at work on Monday 6 September.
vi. In response to paragraph 16.vi I say it is my recollection that the Applicant attended work on Tuesday 7 September and went home sick. I recall receiving a text from the Applicant at approximately 9.00 or 10.00 advising “I’m leaving”. I may well have sent a text in order to establish what he had or had not done before leaving.
[16] In response to paragraphs 17, 18, 19 and 20 I say that I deny ever ‘harassing’ the Applicant. On any occasion I observed the Applicant to be emotional or unwell I advised the Applicant to see a doctor and take time off work to get himself better. At no time over the period 3 to 8 September 2010 (or indeed over the entire period of his employment) did the Applicant notify me he was on sick leave in accordance with a medical certificate from his doctor. On no occasion during his employment did the Applicant advise me he was suffering from a medical condition which was either caused by or exacerbated by ‘work conditions’ or which prevented him from working.

80.At trial, Mr Zammit said that he had daily contact with the plaintiff during the relevant period, whether by phone or face to face, and that there were three occasions when he found the plaintiff upset at APSC. The first occasion related to the incident with Ozzie.[99] The second occasion was when the plaintiff was supposed to be fitting off a panel, but Mr Zammit found him sitting on the ground crying and not working. Mr Zammit said he tried to encourage him to work, but ended up fitting off the panel while the plaintiff remained seated. Mr Zammit could not recall what the plaintiff was upset about, but did relay to Mr Assimakopoulos what he had observed that day.
[99]This is canvassed at [42] of the judgment from the content of Mr Zammit’s Fair Work Australia statement.
81.The third occasion referred to by Mr Zammit was on 2 September 2010. He went to APSC to assist with the work at that site, along with some other workers. He found the plaintiff in the gym, in a distressed state and not making a lot of sense.[100] Mr Zammit saw the plaintiff “climbing up and down on ladders” and said that he told the plaintiff to stop working, to go to the smoko shed to calm down.[101] The plaintiff did so, and when he returned, he packed up his tools, left the site and did not return that day. He was not crying or distressed when he left.[102] Later Mr Zammit conceded that the plaintiff had left the site on that day distressed.[103] Mr Zammit said that on other occasions when the plaintiff had been upset or agitated at work he would go to his car to calm down and then return to work.
[100]Transcript, 1012
[101]Transcript, 1018
[102]Transcript, 1020
[103]Transcript, 1037
82.Mr Zammit said that later on Friday 3 September 2010 he spoke to the plaintiff on the phone. The plaintiff told him he was getting a blood test on the Saturday but could come to work after that, but Mr Zammit said that a short time later he told the plaintiff not to worry about it.[104] He did not know whether the plaintiff saw a doctor on that weekend.[105]
[104]Transcript, 1038
[105]Transcript, 1037
83.Mr Zammit said that he saw the plaintiff on 6 September 2010 at the Laurette site and that the plaintiff did not look well. He told the plaintiff to go home if he was unwell. On 7 September 2010 the plaintiff attended work but left early and texted Mr Zammit to say he was leaving at 9 or 10 am. Mr Zammit responded that he understood this, and inquired of the plaintiff what tasks had been done and what remained to be done.
84.Mr Zammit said that he did not know that the plaintiff saw a doctor on 7 September 2010.[106] However, Mr Zammit told the plaintiff to go home if he was not well.[107] The plaintiff was concerned about getting the sack for being sick and Mr Zammit told him that nobody gets the sack for being sick if you get a medical certificate.[108] He did not recall seeing or being given a medical certificate by the plaintiff around this time. He insisted that on the two occasions when he saw the plaintiff sitting on the ground at work crying he told him to see a doctor.[109]
[106]Transcript, 1044
[107]Transcript, 1045
[108]Transcript, 1045
[109]Transcript, 1016
85.I accept Mr Zammit’s evidence that he did not see a medical certificate from the plaintiff. That medical certificate was faxed to the defendant on 12 September. On the material before me, I consider that the impugned text messages were not texts pressuring the plaintiff to return to work when sick, but were standard daily text messages confirming the availability of the plaintiff for the next day’s work or otherwise seeking confirmation of the state of the job which the plaintiff left when he went home sick. This allegation is not made out.
86.To the extent that the allegations of unreasonable work pressure are intended to constitute allegations of a breach of a duty of care to provide a safe system of work, I find that there has been no breach of duty by the defendant in this respect.
Was the defendant negligent?
87.I turn to consider each of the allegations of negligence pleaded at paragraph 20 of the Statement of Claim.[110]
(b) Failing to support the plaintiff as promised with reasonable assistance of co-workers to undertake the work duties he was required to perform which were jobs appropriate for at least two full time employees
[110]Outlined at [5] of the judgment.
88.Mr Harrington identified two interventions that a reasonable employer could have undertaken. One was that of providing additional workers. I have already found that additional assistance was provided to the plaintiff at APSC on a number of occasions. I accept that two sets of hands might have been preferable, in terms of efficiency and ease of work, at APSC. However, I am not satisfied that the plaintiff has established that the defendant’s work (whether the roughing-in alone or in combination with the other tasks to be completed) at APSC was such as to require the presence of two full-time workers for the duration of that job. This allegation fails.
(e) Failing to provide proper equipment by way of scissor lift
89.It was common ground that the defendant did not hire a scissor lift at the APSC site during the relevant period and that the plaintiff was told when he was hired that he would have to work off a ladder at that site unless he could use a scissor lift that was provided on site by the builders.[111] Mr Harrington identified the provision of a scissor lift as one of two interventions that that could have been undertaken by a reasonable employer.
[111]Transcript, 114-115
90.The evidence as to the role of the scissor lift in the system of work adopted at APSC may be briefly stated. Mr Laoumtzis said that generally the defendant did not hire scissor lifts as their contracts with builders such as Watpac usually excluded them from doing so. The usual arrangement was that the defendant’s workers would use scissor lifts provided on sites by the builders working on those sites.[112] He could not recall whether the defendant hired a scissor lift for the APSC job. Mr Laoumtzis said that the plaintiff’s job at APSC could be done using a ladder, that a scissor lift is only needed when the work to be done is at a height where it cannot be done from a ladder. He said that there were about ten scissor lists available on the APSC site, being used by other tradespeople, and that it was common for the defendant’s workers to borrow them. He agreed that provision of a scissor lift would make the job more efficient.
[112]Transcript, 815
91.The plaintiff said that there were about ten scissor lifts on the APSC site during the relevant period,[113] and that around the middle of the period of the work at that site, he was able to borrow a scissor lift from some of the electricians in the lunch break for 30 minutes.[114] He said that over the six month period, he probably had access to a scissor lift for a total of 8 hours.[115] He also said, when explaining the incident with Nick, that he thought it appropriate to do the work he was doing off a platform ladder. The plaintiff said[116]:
I’d worked off the ladder previously and I had done all of the work to that point off a ladder, so I didn’t see why he couldn’t work off the ladder. If I was able to work off a ladder I’m sure he could. He just didn’t - he was just being difficult, didn’t want to, so basically he ended up leaving the site, yeah.
[113]Transcript, 126
[114]Transcript, 126-127
[115]Transcript, 127
[116]Transcript, 192-193

92.In cross-examination, the plaintiff agreed that if he had a problem working without scissor lifts he could have raised this with the defendant when meeting with managers on 5 May 2010 to discuss the incident with Nick. The plaintiff did not allege that he ought to have done all of his roughing in work or other work at APSC using a scissor lift on a regular basis. Nor did he allege that on days when he wished to use a scissor lift he contacted Daniel Zammit or any of the defendant’s personnel to request that one be provided.
93.There was some evidence from Michael Dowling that the quotation he prepared for the works to be done at APSC made provision for a scissor lift. His evidence was that this was done because he knew that the ceiling heights in the gymnasium at APSC site was approximately 5–6 metres high,[117] whereas generally, according to Mr Zammit, the ceiling heights at APSC were a standard 2–3 metres in height. However, Mr Zammit’s evidence was that even in the gymnasium, they would normally run cables above the brick wall that was approximately 2.5–3 metres high, and he confirmed that the sensors in the gym were installed at approximately 2.5–3 metres high.[118] In any event, the plaintiff said that he worked off an eight foot ladder in the gymnasium.[119]
[117]Transcript, 858
[118]Transcript, 941
[119]Transcript, 125
94.I consider that there is insufficient evidence of a need for a scissor lift for the day to day work at APSC being performed by the plaintiff. This allegation is not made out.
(f) Placing unreasonable pressure upon the plaintiff and targeting him personally by way of intimidating remarks concerning delay costs that he would be responsible for
95.I have made my finding about the delay costs issue above at paragraph 55. These comments, if made, were inappropriate. However, I do not consider that these comments alone, made in a single, short, telephone conversation constitute “unreasonable work pressure”. It may be that the comment upset the plaintiff. On the authorities,[120] a stressful event or stress at work may be commonplace, but in order to succeed the plaintiff must establish whether the kind of harm alleged, i.e. psychiatric illness, was reasonably foreseeable at the time in relation to him. As this conversation is said by the plaintiff to predate the 2 September 2010 incident at APSC, notice in relation to foreseeable impact of this comment must fall back to earlier events. I have found below at paragraph 104 that there was no such notice. This allegation is not made out.
(j) Physically intimidating the plaintiff by way of Tass Assimakopolous and Michael Dowling abusing him and following him in an intimidatory manner to his vehicle on 17 September 2010
[120]Taylor v Haileybury [2013] VSC 58, [40] (‘Taylor)
96.It is common ground that on 17 September 2010 the plaintiff was working at the Laurette site and that Daniel Zammit asked him to prepare a checklist for that site as to what remained to be done. It was also common ground that the plaintiff was sent a text on that day by Mr Assimakopoulos inviting him to attend a meeting at 3 pm at the office at Port Melbourne. When he arrived at the meeting, Mr Assimakopoulos was present along with Michael Dowling. There is a divergence in the evidence between Mr Assimakopoulos and the plaintiff as to what was said at the meeting, and as to the demeanour of each of them, but I need not decide those matters, as it is common ground that at that meeting that plaintiff was informed that he was being made redundant. According to Mr Dowling and Mr Assimakopoulos, the plaintiff became agitated and left the meeting. The impugned conduct concerns what happened when the plaintiff left the meeting room.
97.The plaintiff said that he went to leave the meeting, struggled to open the door, and that Mr Dowling and Mr Assimakopoulos were right behind him. Mr Assimakopoulos demanded that the plaintiff return the company’s drill, and the plaintiff invited them to come out to his car with them so that he could do so. The plaintiff alleges that they followed him to his car and were breathing down his neck as he took the drill from his ute, that he asked Mr Assimakopoulos more than once to “back off and give me space”, that he removed the drill from his tool box, put it on the ground, then got into his car and left.
98.
Mr Dowling’s evidence in respect of the meeting of 17 September 2010 was that he was asked by Mr Assimakopoulos to attend the meeting, mediate it, and take notes. His evidence was that as soon as the plaintiff was told that the company had no work for him at the present time, he became agitated, interrupted Mr Assimakopoulos and left the meeting. Mr Assimakopoulos followed him, telling him to “calm down” and Mr Dowling then followed Mr Assimakopoulos.[121] When it became apparent that the plaintiff was going to leave the premises, Mr Assimakopoulos asked him to return the power drill belonging to the defendant. The plaintiff said he would do so and went to his car. Mr Dowling stated that he and Mr Assimakopoulos stood back and let the plaintiff remove the drill. He described their positions as follows: he was at the left hand rear of the vehicle; the plaintiff was to the front of the vehicle, leaning over it to get the tools out; and Mr Assimakopoulos was standing to the right hand rear part of the vehicle.[122] He agreed that the plaintiff may have said “back off” a couple of times, but said he thought the plaintiff

“was still trying to say to him [Mr Assimakopoulos] to back off in terms of the overall situation.”[123] He said that after removing the drill from his car, the plaintiff approached Mr Assimakopoulos with it.
[121]Transcript, 866
[122]Transcript, 867
[123]Transcript, 915
99.Mr Assimakopoulos’ evidence was that he followed the plaintiff when he stormed out of the meeting, told him to calm down, then asked him to return the company’s tools, and asked him to call on Monday. He said that the plaintiff retrieved the drill from the back of his ute. He said that he did not invade the plaintiff’s personal space, or breathe down his neck. He agreed that he was close to the ute, possibly on the other side from the plaintiff. He said he was not told by the plaintiff to back off. He was not cross-examined about these matters.
100.I prefer the evidence of Mr Dowling as to what occurred as the three men went to the plaintiff’s car and when they arrived at it. I do not consider that the actions of either Mr Dowling or Mr Assimakopoulos constitutes physical intimidation. I do not consider that what occurred in the car park constitutes an instance of “unreasonable work pressure”. Accordingly, this allegation is not made out.
(k) Allowing the work conditions of the plaintiff to become so oppressive upon his mental health that it was reasonably foreseeable and likely that he would become psychiatrically unwell if it was allowed to continue.
101.This allegation assumes that the plaintiff’s workload was unreasonable and that defendant was on notice as to the foreseeability of his developing a psychiatric illness.
102.On the authorities, agreement by an employee to perform the very duties which are later found to be a cause of psychiatric injury may be of considerable significance in determining whether an employer has breached its duty of care.[124] Further, it is accepted that situations creating stress will arise in the workplace and there is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.[125]
[124]See, eg, Larner v George Weston Foods Ltd [2014] VSCA 62, [206]; Taylor [2013] VSC 58, [112]
[125]Box Hill Institute of TAFE v Johnson [2015] VSCA 245, [60] citing Nationwide News Pty Ltd v Naidu [2007] 71 NSWLR 471, 477 [20] (Spigelman CJ)
103.In this case, it is relevant that the plaintiff had already worked in a similar role for the defendant in 2005 and 2006, working on two buildings of apartments in Flinders Street.[126] The plaintiff described himself in that job as being “pretty much under the pump” and agreed that this was an example of the normal sort of pressure involved in this trade.[127] It is clear that the plaintiff knew the pressures of the job he was taking on with the defendant in early 2010. I consider that the work stress involved in finishing the job at APSC is not an indicator that an employee is at risk of psychiatric injury.
[126]Transcript, 98
[127]Transcript, 307
104.I have found above that I am not satisfied that the plaintiff’s workload was unreasonable. I am not satisfied that it was “oppressive upon his mental health”. I have also found that there was no notice. This allegation is not made out.
(l) Failing to properly supervise Daniel Zammit and Tass Assimakopoulos
105.This is a wide and vague allegation about which there was no evidence. This allegation is not made out.
(n) Failing to take adequate steps to remove the plaintiff from the workplace when it became or ought to have been obvious to the defendant that the plaintiff was not coping mentally.
106.This allegation assumes notice. It also wrongly states the test, which is not one of “not coping mentally” but rather whether the defendant knew or ought to have known that the plaintiff was at risk of developing a recognisable psychiatric injury. To the extent that I found have found that there was no requisite notice of the plaintiff suffering recognisable psychiatric condition, the allegation is not made out.
107.I note however that to the extent that the allegation is that the defendant should have sent the plaintiff home when he was upset, this is precisely what Mr Zammit did on 2 and 6 September 2010 when he told the plaintiff to go home if he was unwell.
108.Mr Zammit’s evidence was that on occasions if the plaintiff was upset at APSC he would tell him to go to the smoko shed and calm down and that the plaintiff would then return and resume working.[128] On one occasion in September 2010 when the plaintiff was on the ground crying and not doing any work,[129] Mr Zammit said that he tried to encourage the plaintiff to work but that he was not in a state to work, so he instead fitted off the panel for the plaintiff while he attempted to talk to the plaintiff.[130]
[128]Transcript, 1018
[129]Transcript, 1011
[130]Transcript, 1011
109.Mr Zammit said that he suggested that the plaintiff see a doctor on a number of occasions.[131] One such occasion was in June 2010, when he encouraged the plaintiff to see a specialist for the rash on his head and hands.[132] Another occasion was towards the end of the APSC job, when he suggested that the plaintiff needed to see a doctor.[133]
[131]Transcript, 956
[132]Transcript, 954
[133]Transcript, 955
110.In any event, it is clear on the evidence that the plaintiff did not attend a doctor until 7 September 2010. To the extent that it is alleged that the defendant should have removed the plaintiff from work, it is not suggested how that should have been done, whether by way of redeployment or dismissal, nor were any of these matters put to the defendant’s witnesses. This allegation is not made out.
(q) Failing to adequately train its personnel including Daniel Zammit, John Laoumtzis and Tass Assimakopoulos
111.No evidence was led as to what training should have been undertaken. Mr Zammit gave evidence about his work history and experience. No questions were asked of Mr Laoumtzis or Mr Assimakopoulos about their training. This allegation is not made out.
Foreseeability of risk of psychiatric injury
112.Having regard to my conclusion that there was no negligence on the part of the defendant, it is unnecessary to consider any foreseeability of the risk of injury. However, as each party made detailed submissions upon this issue, I consider it appropriate to deal with this matter.
113.While at law the employer has a duty to take reasonable care to guard against the risk of injury, foreseeability of psychiatric injury is insufficient to create a general duty on an employer to take reasonable care to guard against that risk. Rather, an employer’s duty of care in psychiatric cases is engaged only where it is reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful, that the employee will suffer a recognisable psychiatric illness caused by employment.[134] Where a worker agrees to perform the duties that caused the injury, work stress alone is not an indicator that an employee is at risk of developing a recognisable psychiatric injury.[135]

[134]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, [33]
[135]Taylor [2013] VSC 58, [109]
114.In a negligent infliction of psychiatric injury case, a number of additional factors are present: the risk of injury may be less apparent that in cases of physical injury; whether a risk is perceptible may depend on the vagaries of human expression and comprehension; the taking of steps likely to reduce the risk of injury to mental health may be of more debatable efficacy than in physical injury cases; the private and personal nature of psychological illness make it hard for an employer to discharge its duty in this respect; the dignity of employees and their right to be free of intrusive inquiries; and the complex issue of how and when an employer should intervene to prevent mental illness, and whether such intervention is likely to succeed in ameliorating an employee’s problems.[136]
[136]Taylor, [116] citing Hegarty v Queensland Ambulance Service [2007] QCA 366, [41]-[43] (Keane J)
115.Foreseeability will not be established where the employer has no reason to suspect that the worker was at risk of psychiatric injury. If an employer is not on notice (through any signs from the employee, such as express warnings or implicit warnings that may come from frequent or prolonged absences that are uncharacteristic),[137] then the plaintiff’s case will fail.
[137]Hardy v Mikropul Australia Pty Ltd [2010] VSC 42, [218]
Particulars of knowledge
116.I will deal with each of the particulars of knowledge in turn.[138]
[138]See [17] of the Statement of Claim
(a) From about late May 2010 onwards the plaintiff spoke on numerous occasions to Mr. Daniel Zammit:
(i) Including breaking down into tears in front of him and pleading for help;
(ii) Telling him that the workload was getting way too much and beyond what was originally agreed;
(iii) Telling him that despite assurances of ready help at the start of his employment he was effectively on his own and that he needed a worker to help him;
(iv) Many times offering to leave his employment if he was doing something ‘wrong’;
(v) Asking him why he was being treated like this;
(vi) Explaining that one of the workers allocated to help him after his request called “Nick” wanted a scissor lift to work at the site and when it was not available didn’t want to work there;
(vii) Stating that he was struggling emotionally and physically;
(viii) Showing him his forehead which had an extensive rash;
(viii) Showing him his hands which were dry and cracked to the point of bleeding;
(b) Mr Zammit:-
(i) Asked the plaintiff more than once “What’s wrong Chris” or words to the effect and was told by the plaintiff that he had too much work;
(ii) Had known the plaintiff for several years prior to the period and would have been familiar with the plaintiff’s work capacity and personality – accordingly noting the changes to his presentation and appearance including his weight loss;
(c) Mr Zammit:–
(i) was spoken to by Mr Mick Fitzsimmons [sic] and Mr Chris Martin of Watpac[139] about their concerns about the plaintiff’s medical fitness to be on site; By early September was further aware that the plaintiff was still unwell and was to seek medical help from his doctor;
(d) John Laoumtzis:
(i) Between June to August 2010 on one occasion the plaintiff spoke to Mr Laoumtzis about his extreme work pressures, his waning health and the lack of assistance from his own project manager Mr Zammit. Mr Laoumtzis attended and spoke with the plaintiff who was distressed, assuring the plaintiff he would sort out the issues and get back to him which he never did; and
(ii) The plaintiff also offered to leave his employment if he was doing something wrong – and asked Mr Laoumtzis why he was being treated like this.
[139]Site Manager of APSC

117.The defendant says that at no time during the course of the plaintiff’s employment was it put on notice of a risk of an identifiable and recognisable psychiatric condition related to his employment. At its highest, the defendant says that, from discussions between the plaintiff and Mr Zammit, it was on notice of a skin rash or some dermatological condition.
Particulars (a)-(c)
118.I have carefully considered the evidence of the plaintiff and Mr Zammit as to the conversations between them as well as the evidence of Mr Fitzsimons. For the reasons set out below, I find that none of the conversations constitute notice to the defendant that the plaintiff was a person vulnerable to sustaining recognisable psychiatric injury.
119.I am satisfied from that evidence that Mr Zammit found the plaintiff crying on three occasions. The first occasion was in July 2010 during the incident with Ozzie, an apprentice who had been sent to help him on site.[140] The second was about a week before 2 September 2010 when the plaintiff was tasked with fitting off a panel but Mr Zammit found him crying on the ground and not working.[141] The third was on 2 September 2010 when Mr Zammit went to the APSC site to assist with the completion of works on site and found the plaintiff in the gym area in a distressed state. There was no evidence that the plaintiff told any of the defendant’s personnel that his crying related to unreasonable work pressure. The plaintiff did not assert anywhere in his evidence that on each of the occasions when he cried, he pleaded with Daniel Zammit for help. Therefore particular (a)(i) is not made out.
[140]Transcript, 971
[141]Transcript, 1011
120.In relation to particular (a)(ii), there is no evidence before me of such conversations and I find that it is not made out.
121.In relation to particular (a)(iii), there is evidence from the plaintiff and Mr Zammit of requests for assistance by the plaintiff, but no evidence that Mr Zammit told him he could not get assistance. Mr Zammit’s evidence, which I prefer, is that whenever the plaintiff requested assistance at APSC he passed those requests on to Mr Assimakopoulos.[142]
[142]Transcript, 967
122.In relation to particular (a)(iv), the plaintiff gave evidence that he mentioned to Mr Zammit in July 2010 that “if they weren’t happy with my work performance that I was happy to leave”, but that Mr Zammit nonetheless maintained that they were happy with his work.[143] This was not put to Mr Zammit, but in any event, Mr Zammit noted that when he was concentrating, the plaintiff worked well. Mr Laoumtzis said in his evidence that the plaintiff was doing a good job at APSC and was happy with the plaintiff’s work.[144] Even if I accept that the plaintiff said those words to Mr Zammit, there is no basis for me to conclude that those words constituted the relevant notice of a foreseeable risk of psychiatric injury.
[143]Transcript, 356
[144]Transcript, 809
123.In relation to particular (a)(v), I note that this allegation was not put to any of the defendant’s witnesses. In any event, in the light of evidence from Mr Laoumtzis that the defendant was happy with the plaintiff’s work, I find that this allegation is not made out. Particular (a)(vi) merely recites the plaintiff’s explanation to Mr Zammit as to why Nick left the site on that day. In the light of the plaintiff’s evidence that he was working off a ladder at APSC, felt it was appropriate to do so, and said so to Nick on that occasion, I find that this allegation is not relevant to the question of notice.
124.In relation to particulars (vii) and (viii), the evidence is as follows.
125.The plaintiff said that in June 2010 he told Mr Zammit the following[145]:
I had open wounds on my forehead at this stage, I actually raised my hard hat up and said, ”Look at me, Daniel. It’s not as if I’ve got a mystery back illness. I’m struggling here. You can see me, I’m physically, like, struggling. Have a look at me.”
[145]Transcript, 201-202

126.Mr Zammit’s recollection was in the following terms[146]:
I remember him showing me the rash on his head, yes, because he showed me that and asked me if he could have some time off to see a specialist.
[146]Transcript, 954

127.In cross examination, Mr Zammit insisted that the plaintiff did not ask him for help at that time, but just lifted his hat to show him the rash, which Mr Zammit had not seen before (because the plaintiff wore a baseball cap beneath his hard hat), because the plaintiff had asked to leave early to go to see a specialist.[147]
[147]Transcript, 986-987; 993-994; 1015
128.In the light of this evidence, I find that the plaintiff did tell Mr Zammit that he was struggling physically. There is no evidence that the plaintiff told Mr Zammit on that occasion (or any other) that he was struggling emotionally, nor was this part of the allegation put to Mr Zammit. That part of the allegation that the plaintiff told Mr Zammit that he was struggling emotionally is not made out.
129.The plaintiff and Mr Zammit agree that the plaintiff showed him the rash on his forehead, and I find that this occurred.
130.Particular (viii) was not put to Mr Zammit, whose recollection extended only to being shown the rash on the plaintiff’s forehead in June 2010. Even if the plaintiff did show Mr Zammit his hands, I consider that the state of his hands would, at best, have alerted the defendant to a physical condition.
131.There was no evidence by the plaintiff in the terms of particulars (b)(i) and (ii), apart from Mr Zammit agreeing that he noticed that the plaintiff lost weight, nor were these matters put to Mr Zammit. I find that those particulars are not made out.
132.I turn to particular (c). The evidence of Mr Zammit and Mr Fitzsimons about the events of 2 September 2010 is dealt with at paragraphs 78 and 79 above I have noted the exchange of text messages between the plaintiff and Mr Zammit in the early part of September 2010. It is clear that the defendant knew the plaintiff was sick because he told them so. There is no evidence that he told them that he was emotionally unwell, or seeing doctors for psychological reasons. Rather, there was talk of blood tests, rash, specialist appointment to deal with rash, all indicia, in the absence of more specific information, of physical medical conditions only.
133.I conclude that the fact that the plaintiff appeared distressed to Mr Zammit on occasions (although on three of these occasions Daniel Zammit did not know why) and that there was a meeting with Watpac representatives on 2 September 2010 are facts which do not amount to the defendant being on notice of an identifiable and recognised psychiatric condition. Particular (c) is not made out.
Particular (d)
134.I turn to particular (d). The plaintiff’s evidence was that sometime after he broke down in front of Mr Zammit and had not received the assistance he says he had asked Mr Zammit for, he rang Mr Laoumtzis and broke down when speaking to him he said he discussed his workload with Mr Laoumtzis and the support he was getting from Mr Zammit.[148] Mr Laoumtzis agreed that he had done a few site walks with the plaintiff through APSC and did notice on one occasion that the plaintiff had a scab on his forehead.[149] On that occasion, he said that the plaintiff asked for assistance at the site and it was provided to him,[150] but that he did not organize it. There is no evidence that the plaintiff told Mr Laoumtzis of “his waning health.” The plaintiff’s evidence was that he spoke to Mr Laoumtzis about “pressure” but the nature of this was not specified.[151] In cross examination, the plaintiff said that he offered to leave his employment if he was doing something wrong but was reassured that they did not want him to leave[152] and spoke broadly of the fact that he “didn’t deserve to get treated the way [he] was getting treated…”.[153] These claims were not put to Mr Laoumtzis. I consider that this allegation is not made out.
Medical evidence concerning notice
[148]Transcript, 211
[149]Transcript, 809
[150]Transcript, 816
[151]Transcript, 211
[152]Transcript, 357
[153]Transcript, 418
135.For the sake of completeness, I turn briefly to the medical evidence relevant to the question of notice.
136.When Dr Nassios saw the plaintiff on 7 September 2010, he recorded the following[154]:
working as an electrician, complaining of low back pain and migraine, feeling stress with excessive amount of work. complaining of anxiety.
Reason for contact:
anxiety and minor SOFT TISSUE INJURY low back.
[154]Exhibit Y
Management: counselling, bloods and ? medication; rash on face, needs a derm review.

Dr Nassios prescribed pathology tests, referred the plaintiff to a dermatologist, and gave him a general medical certificate covering the period 3-8 September 2010.[155] While Daniel Zammit denied seeing it or being given it by the plaintiff in September 2010, that certificate did not specify what was being treated, did not refer to any psychological or psychiatric condition, and did not make any link between the unspecified ‘medical condition’ and the plaintiff’s employment.
[155]Transcript, 630
137.On the evidence, I conclude that, putting the plaintiff’s case at its highest, all that the employer was on notice of was that the plaintiff was working hard and was struggling with the recurrence of a physical condition.
138.That physical condition, lichen simplex chronicus (LSC), is, according, to Dr Alan Segal, dermatologist, an uncommon condition.[156] Dr Segal said that it would be surprising for a general practitioner to diagnose let alone know how to treat it. Dr Segal said that, accepting the history of the pre-existing skin condition, what occurred during the period of employment was an aggravation or exacerbation of an underlying condition, the genesis of which was a scratch or abrasion sustained at work.[157] He agreed that the scratch would lead to an itching sensation (which was psychogenic), which would then lead to stress about a developing lesion, and that the condition becomes self-perpetuating because the itchiness leads to persistent scratching, and the condition develops.[158]
[156]Transcript, 442-443
[157]Transcript, 193-194; 445
[158]Transcript, 444
139.Given the generality of the medical certificate, and the complexity of the plaintiff’s dermatological condition, it cannot be said that the defendant was on notice of a risk of psychiatric injury. Nothing in the evidence leads me to conclude that there was any basis, during the course of the plaintiff’s employment, for the defendant to suspect that the plaintiff’s mental health was at risk as a result of his workload.
Conclusion on the issue of notice
140.I consider that none of the matters referred to in the particulars of knowledge establish that from May 2010 the defendant knew, or ought to have known, that the plaintiff was a person vulnerable to sustaining recognisable psychiatric injury.
Damages
141.I have not assessed damages in this case as I do not find the defendant liable for the plaintiff’s claim.
Conclusion
142.The plaintiff’s claim is dismissed. I will hear the parties on the question of costs.

[2018] VCC 1857

19 November 2018