Ward v Allianz Australia Services Pty Ltd

District Court

New South Wales

Medium Neutral Citation:	Ward v Allianz Australia Services Pty Ltd [2019] NSWDC 293
Hearing dates:	29 and 30 April, 2 May 2019, 17 May 2019 on the papers
Date of orders:	05 July 2019
Decision date:	05 July 2019
Jurisdiction:	Civil
Before:	Judge J Smith SC
Decision:	Verdict for the plaintiff. Defendant to pay the plaintiff damages in the amount of $1,394,421.91 together with interest and costs.
Catchwords:	WORKERS COMPENSATION – intentional tort – conduct calculated to cause harm – defendant’s responsibility for employee’s deliberate conduct – liability in negligence
Legislation Cited:	Civil Liability Act 2002 (NSW), sub-s 3B(1)(f) District Court Act 1973 (NSW), sub-s 44(1)(d1) Social Security Act 1991 (Cth), s 151IA Workers Compensation Act 1987 (NSW), ss9A, 151D, 151G, div 3 of pt 5
Cases Cited:	Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 Northern Territory of Australia v Mengel (1995) 185 CLR 307 New South Wales v Lepore (2003) 212 CLR 511
Category:	Principal judgment
Parties:	Craig Ward – Plaintiff Allianz Australia Services Pty Ltd - Defendant
Representation:	Counsel: Plaintiff: Mr S Kalfas SC with Mr Moffet Defendant: Mr I Todd   Solicitors: Plaintiff: Shine Lawyers Defendant: Turks Legal
File Number(s):	2018/178332
Publication restriction:	Nil

Judgment

1. The plaintiff is a 52 year old man suffering from a range of psychiatric conditions including PTSD [1] and depression. He claims that his condition was materially caused by the bullying and harassment he experienced at the hands of his manager (Mr Smith) when he was employed by the defendant between 2003 and 2004.

   1. Post-traumatic stress disorder.

2. The plaintiff seeks common law damages, as circumscribed by the Workers Compensation Act1987 (NSW). In particular, he claims damages for the past lost wages and for the future earnings up to the date on which he would have been entitled to retire, namely 20 February 2034.

3. The defendant accepts that the plaintiff was bullied by Mr Smith; however, it argues that there are a number of reasons for which the plaintiff’s claim ought not succeed. These include the following. First, the physical component of Mr Smith’s behaviour towards the plaintiff had no connection to Mr Smith’s role as manager. Secondly, it argues that it did not know that at the time that the plaintiff had been bullied, or that that conduct had had any impact on the plaintiff’s health. Thirdly, it argues that the plaintiff’s condition, and his subsequent inability to perform work, were caused by factors other than the bullying.

4. Although there are some issues of fact, the main contest between the parties was the application of the law to the facts. For that reason, it is convenient first to deal with the evidence and any issues of fact and then to deal with the questions of law that arise from them.

The facts

i.   The plaintiff at work

5. The plaintiff’s evidence was given by…