Wilson v Riverton Rossmoyne Bowling and Recreational Club Inc
[2015] WADC 54
•7 MAY 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WILSON -v- RIVERTON ROSSMOYNE BOWLING AND RECREATIONAL CLUB INC [2015] WADC 54
CORAM: SCOTT DCJ
HEARD: 12-23 MAY & 23 JULY 2014
DELIVERED : 7 MAY 2015
FILE NO/S: CIV 3567 of 2010
BETWEEN: JULIE ANITA WILSON
Plaintiff
AND
RIVERTON ROSSMOYNE BOWLING AND RECREATIONAL CLUB INC
Defendant
Catchwords:
Employee claim for damages for psychiatric injury caused by workplace bullying - Reasonable foreseeability - Breach of duty - Causation - Whether claim in contract
Legislation:
Workers' Compensation and Injury Management Act 1981 pt IV div 2
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr N F Morrissey
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Peter J Griffin & Co
Defendant: Kott Gunning
Case(s) referred to in judgment(s):
Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Amaca Pty Ltd v Hannell [2007] WASCA 158
Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Bennett v Minister of Community Welfare (1992) 176 CLR 408
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brown v Cashman [2013] VSCA 122
Cerebos (Australia) Ltd v Koehler [2003] WASCA 322
Christos v Curtin University of Technology [No 2] [2015] WASC 72
Commonwealth Bank of Australia [2012] FCA 942
Commonwealth Bank of Australia v Barker [2014] HCA 32
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
European Bank Ltd v Evans (2010) 240 CLR 432
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hadley v Baxendale (1854) 9 Exch 341
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Koufos v C Czarnikow [1969] 1 AC 350
March v E & MH Stramare (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377
Purkiss v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Shorey v PT Ltd (2003) 77 ALJR 1104
Tame v New South Wales (2002) 211 CLR 317
Watts v Rake (1960) 108 CLR 158
Wyong Shire Council v Shirt (1980) 146 CLR 40
SCOTT DCJ:
Introduction
From approximately March 2007 the plaintiff worked as a casual barmaid for the defendant and then pursuant to three written contracts (employment contract) dated 22 November 2007, 31 January 2008 and 17 May 2008 she was employed as the bar manager. The termination date in the employment contract was 31 January 2009.
As its name suggests the defendant carried on business as a bowling club and recreational centre. It was at all material times an incorporated association holding a liquor licence pursuant to the Liquor Licensing Act 1988 (Liquor Act).
Members of the defendant and guests were entitled to use the bar facilities.
In these proceedings the plaintiff claims that the defendant:
(a)was in breach of the express and/or implied terms of the employment contract;
(b)further, or alternatively, was in breach of its duty of care to the plaintiff (common law claim);
(c)further, or alternatively, was in breach of its statutory duty pursuant to s 19(1) of the Occupational Safety and Health Act 1984 (OS & H Act);
by reason of which the plaintiff suffered and continues to suffer psychiatric injury.
The plaintiff did not make any submissions with respect to the OS & H Act but relied on the contractual claim and the common law claim. In those circumstances I do not intend to deal with the OS & H Act claim which in any event does not add anything to the two other claims.
Pleadings - issues
Statement of claim
Pursuant to the employment contract the plaintiff alleges that there were the following express and/or implied terms:
The defendant would:
(a)take all reasonable steps to establish and maintain a safe system of work for the plaintiff;
(b)take all reasonable care for the plaintiff's safety in the course of her carrying out the work duties;
(c)take all reasonable care not to expose the plaintiff to the danger or hazard of injury or risk of injury in the course of her employment;
(d)not treat the plaintiff in [an] arbitrary, capricious or intolerable manner;
(e)not prevent the plaintiff from carrying out her work duties in accordance with the provisions of the Liquor Act and regulations regarding the service of alcohol to patrons;
(f)not harass, bully or intimidate the plaintiff in the course of her carrying out her work duties;
(g)not cause the plaintiff psychiatric damage by reason of the work environment in which the plaintiff was required to perform the work duties;
(h)provide the plaintiff with a safe place of work (par 4).
In the common law claim the plaintiff alleges that the defendant owed her a duty to take reasonable care for her safety in the course of her employment. The plaintiff pleaded duties of care in the same terms pleaded as express or implied terms of the employment contract (above) save for sub‑par (f) in respect to which the plea in the common law claim is that the defendant was under a duty of care to ensure that the plaintiff was not harassed, bullied or intimidated in the course of carrying out the work duties (par 7).
In pars 9(h) ‑ (k) of the statement of claim (pars 9(a) – (g) being abandoned at trial) the plaintiff alleges that on 11 December 2008 and for about 12 months prior thereto her work imposed on her undue stress and anxiety in that:
(h)the defendant's (then) bar chairman, Wally Harvey, used offensive language when telling her that if she did not like the job, to resign;
(i)she was subjected to derogatory remarks, verbal abuse, offensive behaviour and threats from patrons while serving at the bar;
(j)prior to 11 December 2008 she had complained to Bernard O'Brien, the defendant's then president and Alf Smith, the then bar chairman with respect to the abusive behaviour of patrons and the fear she held for her own safety but her recommendations and requests for assistance were ignored;
(k)on 11 December 2008 (the 11 December incident) at or about 7.20 pm in accordance with the committee's direction to her she called last drinks prior to closing the bar at 7.30 pm whereupon she was subjected to verbal abuse and offensive behaviour by Mr Harvey and suffered personal injury.
The plaintiff then alleges (par 10) that she suffered recurrences and aggravations of personal injury during the period 12 December 2008 to the end of January 2009 in that:
•The 11 December incident caused her to become anxious and upset.
•On 19 December 2008 the committee of the defendant informed her that no disciplinary action would be taken against Mr Harvey apart from a warning regarding his behaviour. She was suffering anxiety and stress and was unable to return to work at 4.00 pm that day. Her general practitioner, Dr Hoare, provided her with a medical certificate on that day stating that she was suffering psychiatric symptoms from bullying and harassment in the workplace (par 10.2).
•On 29 December 2008 she was directed that no patrons were to be barred or suspended from service of alcohol notwithstanding the liquor licensing rules and it was for the committee of the defendant to make those decisions. The committee refused to allow her request for a notice to be displayed at the bar counter to warn a patron that there would be no service the following day if there was any abuse, swearing or threats (par 10.3).
•On 2 January 2009 she refused alcohol to two patrons who appeared to be affected by alcohol and was subjected to shouting, abuse and offensive behaviour about which she made a report to Mr Smith and she informed the two patrons that they would not be served alcohol the following day (par 10.4).
•On 6 January 2009 the plaintiff was directed not to refuse service of alcohol to a patron the following day even if there was abuse, swearing or threats and was directed to carry on serving patrons 'until they fell off the chair' and it was not the plaintiff's position to monitor the amount of alcohol any person drank. The plaintiff was advised to consider her position as bar manager. The plaintiff was caused added stress and anxiety (par 10.5).
•The plaintiff did not return to work after 6 January 2009 (par 10.6).
The plaintiff alleges that the personal injury (suffered on 11 December 2008) and the recurrences and aggravations during the subsequent period were caused by the negligence of the defendant its servants, contractors and/or agents, further or alternatively, by the defendant's breach of the employment contract.
The plaintiff pleaded that as a result of the performance of the work duties in consequence of the matters pleaded she suffered personal injury being:
(a)stress and anxiety;
(b)depression;
(c)adjustment disorder disturbance with depressed mood;
by reason of which she suffered and suffers loss and damage.
Defence
The defendant:
(a)Admits that it owed the plaintiff a duty of care at common law and in contract.
(b)Denies the allegations of fact in par 9(h) – (k) of the statement of claim or that the plaintiff's work imposed undue stress upon her (par 6).
(c)Denies the allegations in par 10 of the statement of claim and says:
(i)a letter was sent to Mr Harvey which constituted disciplinary action taken on behalf of the defendant;
(ii)at no time was the plaintiff directed by any authorised person or the defendant to continue to serve patrons alcohol until they fell off their chair(s);
(iii)the plaintiff did not return to work from 6 January 2009 therefore she was unable to suffer a recurrence or aggravation of personal injury in the course of her employment from that date (par 7).
(d)Denies that the plaintiff sustained personal injury in the course of her employment or recurrence or aggravation thereof or that the defendant was or by its servants, contractors or agents was negligent (par 8).
(e)Says further (par 9):
(i)It neither knew or ought to have known at any time during the course of the plaintiff's employment that she was experiencing stress or undue stress or that the plaintiff was at risk of injury by way of the development of a stress related disease.
(ii)Denies that any medical condition relating to stress that the plaintiff may have was caused or materially contributed to by her employment with the defendant.
(f)Denies that the defendant was in breach of the employment contract (par 10).
(g)Denies that the plaintiff suffers or has suffered any injury caused by stress as a result of her employment (par 11).
(h)Says that the plaintiff's claim is subject to the provisions of pt IV div 2 sub-division 3 of the Workers' Compensation and Injury Management Act 1981 (Workers' Compensation Act) such that damages can only be awarded to the plaintiff if it is determined that the plaintiff's degree of permanent whole of person impairment is at least 15% and puts the plaintiff to proof (par 12).
(i)Puts the plaintiff to proof of her claim for damages.
In further answer the defendant says that if, which was denied, the plaintiff suffered an injury or the recurrence or aggravation of an injury it was caused by the plaintiff's reaction to the reasonable actions of the defendant in dealing with her alleged complaints and the failure of the defendant to act in accordance with her wishes (par 18).
As the plaintiff's case was presented at trial and in counsel's closing submissions, the plaintiff's claim at common law and in contract pertained to considerations relating to allegations about the conduct of Mr Harvey and those with whom he associated at the bar of the club towards the plaintiff which constituted bullying behaviour, the reaction of the committee members to complaints by her and the failure of the defendant to reasonably respond resulting in the plaintiff suffering psychiatric injury and recurrence or aggravation of that injury.
Issues to be determined
(1)Did the plaintiff suffer a psychiatric injury? There is no issue that the plaintiff did suffer a psychiatric injury. The date(s) upon or by which and the circumstances in which the injury was sustained are in dispute.
Common law claim
(2)What was the scope and content of the duty of care owed by the defendant to the plaintiff?
(3)Was the plaintiff the subject of bullying type behaviour ('bullying behaviour') from patrons and/or the committee of the defendant?
(4)Was it reasonably foreseeable that the plaintiff would suffer psychiatric injury in the circumstances of this case?
(5)Did the defendant breach its duty of care to the plaintiff in the circumstances of this case?
(6)Causation.
Contract claim
(7)What were the relevant express or implied terms of the employment contract?
(8)Was the defendant in breach of any express or implied terms of the employment contract?
(9)Did the plaintiff suffer psychiatric injury by reason of a breach by the defendant of the employment contract?
Common law and contract claims
(10)Was the percentage of whole person impairment of the plaintiff at trial at least 15% in accordance with s 93K(iv)(d) of the Workers' Compensation Act?
(11)Damages.
Evidence
To 11 December 2008
Plaintiff
The plaintiff was born on 4 October 1959 in the United Kingdom where she said she attended and completed secondary school and excelled in maths and commerce.
After leaving school she had a variety of jobs.
She said that she had worked in an hotel but had not had a lot of experience in a bar. She last worked in a bar in the UK in about 2001.
In his evidence Mr Harvey said that the plaintiff told him that she had done bar work in England and was the youngest landlord of a pub in England or something to that effect.
Mr O'Brien said that the plaintiff told him that she had been running bars in hotels since she was 20. The plaintiff denied saying that and said she accurately told him of her experience.
I am satisfied that the plaintiff related her experience in the terms referred to by Messrs Harvey and O'Brien and that they were led to believe that she had significant experience in running bars.
In November 2004 the plaintiff and her (now former) partner Garry Lockett arrived in Perth. Their son, Garry (Junior), was born on 29 November 1994. She was unable to secure a job for six months and eventually obtained employment with Silver Chain carrying out domestic duties for clients. She worked part‑time for 10 to 20 hours a week. She finished working for Silver Chain in November 2007.
In early 2007 she and Mr Lockett met Mr Harvey at the bowling club through a mutual acquaintance.
Thereafter they mixed socially with Mr Harvey and his wife Karen and became friends. The plaintiff said that a few days after meeting the Harveys she spoke with Lynette Scouller who was then the bar manager at the club about a job in the bar. Ms Scouller suggested she come in during the week and she would show her the nature of the work.
She then worked as a part‑time bar assistant at the club until November 2007. When she started work Mr Harvey was the chairman of the bar.
Shortly after the plaintiff commenced employment she said Ms Scouller told her that she had issues with the committee particularly with respect to Mr Harvey.
Ms Scouller said she recalled an incident on or about 19 September 2007.
Mr Harvey kept screaming at her to serve him because his glass was empty.
She said she was very polite and told him that she would be with him as soon as she could because she had to serve the gentlemen from Rotary before they pulled down the shutters and started their meeting.
She felt that no action was taken against Mr Harvey as a result of that incident. She filled in a report in the incident book which was kept behind the bar (incident book). The only incident she wrote about was the one in the book.
She said she spoke to someone on the committee but she could not remember who.
She resigned in November 2007 because she said she did not have to put up with abuse in the workplace.
Mr Harvey denied that he had a history of verbally abusing female bar staff. He agreed that there was an incident with Ms Scouller in September 2007.
As to that incident he said at that time the bar would be closed if there were less than six people there. Otherwise it generally stayed open until the football on TV was over.
Ms Scouller's boyfriend was in the bar. He wanted to go to Fremantle and she started pulling the shutters down. Mr Harvey said 'You can't do that, you know' and she said 'We're going out'. Mr Harvey said 'We're not going – you can't do that'.
He said she got upset because her boyfriend left and did not wait for her and there was then an exchange between her and Mr Harvey.
He said he was a loud person at the best of times. He said he did not know whether he screamed at Ms Scouller but he would have been loud.
Appointment of the plaintiff as bar manager
The plaintiff said that in November 2007 Mr Harvey and the club president Mr O'Brien (known as 'Bluey') approached her with a proposal that she work as the bar manager, full‑time.
She underwent a liquor licensing course paid for by the club and obtained certificates relating to providing responsible service and undertaking a course in liquor licensing (exhibits 1.1 and 1.2).
During that course she said that she was told that the responsibilities of a bar manager included a requirement not to serve someone who was intoxicated in respect to which the club would be exposed to a $1,000 fine.
The first contract the plaintiff signed with the defendant was dated 22 November 2007 (exhibit 2).
At her request two further contracts were signed which were dated 31 January 2008 (exhibit 3) and 17 May 2008 (exhibit 4).
She said that she did not read any of the contracts.
These further two contracts were entered into following complaint by her that she was being underpaid.
She said by January 2008 she was always approaching Mr Harvey about the hours she was doing for the pay she was getting because there was no difference in pay from when she started at the club as Ms Scouller's assistant and when she was the manager.
She said Mr Harvey told her that he would ask the committee. He would say when she would ask him what was happening 'You know I've spoken to them and you know, Julie, in hindsight they really – they really think that they should have now advertised the job. They really think now they should have advertised the job and got a man to do it'. The plaintiff said she told Mr Harvey that if they want to get a man, to tell them to come and get a man.
The plaintiff said that she knew that the committee met on a Tuesday. She was waiting for Mr Harvey to present her case for extra money to the committee and when he did not come in to the club she telephoned him, he came to the phone and she asked him why he was not there. He asked 'What for?' and she said 'to put my case' about her wages and stuff. She said that his response was, 'If you don't like it, fuck off'. She said, 'it's up to you, but do you want to come and pick the keys up or do you want me to hand them to the committee?'
Mr Harvey put the phone down and the next thing she said he came storming into the club, and asked her what she wanted. She told him to go into the committee meeting and tell them all the hours she was doing and she just wanted to be paid for those hours.
She said Mr Harvey went into the committee meeting and later came out with other members, Madge Bicknell and Helen Vaulters and she thought Eric Charlton, who each said they had no idea that she was not happy.
In his evidence Mr Harvey said that after three or four weeks of being the bar manager the plaintiff became upset because she had to go and pick up her son from school and told him that the work was getting a bit much for her.
He said he spoke with her and said that there were people in the club who would help her cover for the bar so she could pick her son up.
He said she complained to him that her hourly rate was less than the hourly rate of a casual. He tried to explain to her that she was getting 38 hours a week guaranteed and four weeks' holidays and leave loading. She was getting paid for 52 weeks but really only working 48 weeks whereas the casuals did not get those benefits.
He said that she said she still wanted a pay rise and he said he would bring it up with the committee at the next meeting.
He hurt himself on the following weekend when he fell off a ladder and could not go to the committee meeting. When he did not turn up, the plaintiff rang him at home and told him that he was supposed to be at the club pleading her case. He told her that she knew he was sick but said that she kept 'going on and on'.
He hung up and went down to the club and asked her what she wanted. She told him that she wanted a pay rise and told him 'there's the keys … if I don't get a pay rise today, I'm going'.
He went into the committee meeting and told them what the plaintiff had said.
Mr Harvey said that a couple of the committee members had a chat with her and asked her to leave it with them and they would have a talk. They asked her to stay on for a week or so. The club had corporate bowls starting on the Friday night. It was the busy season and the plaintiff said that she would hang around until Thursday. The committee organised another meeting for that Thursday. Mr Harvey denied that he said words to the plaintiff to the effect that she was lucky to have the job. He said he went out of his way to keep her in the job. He said that he never told the plaintiff that if she did not like the job she could 'fuck off'.
He said he never said words to the effect to her that the committee wanted a man and they should have advertised.
There is no need for me to resolve the issue as to what concise words were spoken between the plaintiff and Mr Harvey. Either way it was a robust conversation between them. Even on the plaintiff's version she stood her ground.
Mr Charlton said that he was aware that the plaintiff had complaints about the conditions in her first contract. The committee was reluctant to change it but she was not happy and so the committee agreed to alter it.
He knew that there was more than one change in the plaintiff's contract and he remembered telling the plaintiff the nature of the second change and her saying 'Well that's not what I asked for. And you need to go back in there and tell them that and to ensure that I get exactly what I want'. He said it was about additional dollars per hour to keep in line with her expectation in comparison with the casual staff.
She said 'And if you don't agree to it, I'm walking out right now and … there won't be anybody behind the bar'.
He went back into the meeting and the committee agreed to what she wanted.
The circumstances relating to the execution of these contracts are, in my view, of some importance in considering the nature of the plaintiff's normal fortitude and the defendant's perception of it.
Offensive comments alleged by the plaintiff, complaints made and the defendant's reaction
The plaintiff said that:
1.After Mr Harvey resigned as chairman of the bar and Mr Smith took over towards the end of January 2008, it was then that relations between her and Mr Harvey went downhill.
She said that Mr Harvey came to the club each day to drink in the bar and she would serve him regularly. He would drink with his wife, Mr Fitzgerald and his friend Dave, Ron Mitchell and his wife Susie. She said they would all regularly say things like 'What does she think she looks like?' These comments were made while she was behind the bar.
She said she complained to Mr O'Brien and Mr Smith. She said that she complained to Mr O'Brien more or less on a daily basis but nothing was done. She said she first complained to Mr O'Brien in about April 2008. She said that she would put up with it for so long and then it just started getting worse. It was different if something was said in a flippant way but it was continuous, it was every day and she would dread going in to work.
2.The comments were directed at her because they were about her. They included 'Who the fuck does she think she is? The state of her. She must be after a man because of the way she's dressing'. It was just continuous.
She said the comments would start off with one of that group and they would then all agree.
3.Mr Harvey would often have friends come in who were not members of the club and they would be polite and say 'Please'. Mr Harvey or his wife would then say 'Don't fucking say "please and thank you" to that. You just speak to her any way'.
She said she had plenty of conversations with Mr O'Brien. She said she would say to him 'You know, they keep swearing and talking about me'. She would give him exact word for word what they were saying about her.
The plaintiff said that group would continually repeat the same sort of abuse including 'All barmaids are bitches except the one on High Road' which was aimed at her. They would constantly repeat that comment.
4.Mr O'Brien would tell her that he would speak to Mr Harvey and she needed to just toughen up.
She said that when she reported the comments to Mr O'Brien, some days she'd be in tears telling him 'Bluey, you've no idea what it's like behind that bar and you're listening to them day‑in, day‑out', Mr O'Brien would say, 'Well, just ignore them, you know, Jules, you'll just have to toughen up'.
5.She said that she tried to tolerate it. She said that she still loved her job. She said that she had put up with and tolerated the comments but she still loved working there because there were lovely people at the club. She said she used to say to Mr O'Brien all the time 'If you have a word with them they'll stop, you know. But it needs to come from you … It's no good me telling them to stop …'.
6.In April 2008 her mother came over from the UK and came into the club on a Friday night with her partner and sat with Mr Smith and had a drink. Mr Harvey was at a table with Dave, Mrs Harvey and a couple of others. The plaintiff's partner Mr Lockett, was there as well. As she was counting the money Dave stood in front of her mother and did a jig, singing something like 'Julia's a bore. Julia's a bore. She only wants to count the money, count the money. Julia's a bore'.
She said she recorded that incident in the incident book (the entry is exhibit 5) dated 25 April 2008. Mr O'Brien told her that Dave was not a member and that the plaintiff did not have to serve him the next time he came in. The plaintiff said that Dave was not a regular so they didn't see him for six weeks. When he came in the next time he apologised to her which she accepted and he then asked whether he could be served. Mr O'Brien told her 'Well he's had a six week ban' to which the plaintiff said she replied 'Well, Bluey he hasn't had a six week ban because he was never banned'.
7.When all of these derogatory comments were made there were members of the committee present. They included Mr O'Brien, Mr Smith and Mr Unicume.
The plaintiff said that she had no power to stop the comments being made and was not allowed to stop serving the group or to ban them. She said whenever she brought it to the attention of Mr O'Brien or Mr Smith their favourite saying to her was 'Julie … what you have to think of is this is our home'. She would say 'Yes, Blue, but all the abuse' and Bluey would say 'But, Julie, what you've got to understand, this is our little home and if we want to drink and drink and drink in our little home that's what we do'.
She said that she would respond 'Well, Bluey, you know, you're breaking the law' but said that it was talking to deaf ears. She said that she would get comments such as 'We pay your wages, turn off and just carry on serving them'.
She said that she stayed working because she loved the job, it suited her in the sense that it was decent pay and she kept on thinking that those abusing her were going to get told that they could not carry on like that.
8.A friend of hers (Donna) visited her from the UK. She told Mr Unicume and Mr O'Brien that her friend was coming over and that she needed to take some time off. They said that they had nobody to do the bar. They asked her whether her friend would help her on the bar and that is what happened.
Donna got upset because Mr Harvey and his friends started talking about her the same way as they talked about the plaintiff saying 'Garry must be the pimp because there's now two of them. I wonder what room he sleeps in. Does he take it in turns which one he sleeps with, her one night, you know, Donna the next?' And then commented about the way Donna looked.
She said that she left it to Mr Lockett to deal with the matter. In his evidence Mr Lockett said that the person who made those comments was Mr Symons.
9.On 25 April 2008 there was a surprise 40th at the club.
A man came up to her with a six‑pack of vodka and orange UDLs and she told him not to bring his own alcohol onto the premises. He argued with her but she told him that she would put the six‑pack in the fridge where they keep the stock and that at the end of the night he could have it back when he was ready to go home.
The man then ordered a UDL vodka and orange and told her that he was not buying one when he had brought a six‑pack. She explained to him that it did not work that way. He then became abusive calling her a fucking bitch.
He kept coming over asking for the cans during the night and continued to call her a fucking bitch and 'I'll have you'.
Later the man's wife came up to the bar and asked for the cans saying she was going and so the plaintiff gave her the cans.
Then the man came back to the bar pointing, shouting and calling her a fucking bitch. She then went to the people whose function it was and told them she was going to ring the police because the man had just threatened her. She phoned the police and told them what had happened.
She was concerned because there was a car park next to the club. She was also concerned for her partner's safety.
The next day she said she told Mr O'Brien what had happened. She said that he brought her a baseball bat into the club and gave it to her and told her to put that behind the bar to protect her.
She recorded that incident in the incident book (the entry is exhibit 6).
She spoke to Mr O'Brien and Mr Smith about providing security at the club and Mr O'Brien told her to get Mr Lockett to come down and pick her up and take her home.
10.On 29 November 2008 there was a birthday function at which Craig Edson, Mr Fitzgerald and Mr Harvey were there. As people started to go home Mr Edson and Mr Fitzgerald wanted to go into the function. The plaintiff said she told them that they could not, that she would carry on serving them but that they could not go into the function.
She said Mr Edson said 'I'll go anywhere I want. I pay my fees. If I want to go in there, I'll go in there'. He tried to open the function doors and she stopped him physically.
He became abusive shouting 'I pay my money. I pay $200 a year membership. I can go anywhere I want in this club. You can't stop me'. The plaintiff said she told him she was not going to serve him.
Mr Lockett was there at the time helping her. Mr Edson shouted to Mr Lockett 'You're a fucking wanker' and off he went.
She said she recorded that incident in the incident book (exhibit 7).
She telephoned Mr Smith and told him what had happened either that night or certainly the next day. He said 'Make sure you write everything up in the incident book' which she did.
In his evidence Mr Lockett supported the plaintiff's account of this incident.
11.One evening in November 2008 Mr Unicume who was the treasurer, made abusive comments towards her when he was sitting at the bar.
An older man who was always there and bought a lot of raffle tickets said on that occasion positive comments about the plaintiff to which Mr Unicume commented 'You don't know her. She is writing different hours down'.
The plaintiff said that she went over to Mr Unicume and said 'Vic, what are you saying about me with the timesheets?' and he said 'I'm just saying that you put different hours to what you work'. She said 'I don't'.
She said Mr Unicume said that he worked in 15‑minute blocks and she told him 'Fair enough' but that she did not know that.
Because Mr Unicume used to do the wages on a Thursday she had to foresee what time she thought she was going to leave and predict the time on the timesheets but if something went on longer than she predicted she would tell him the following week.
Mr Unicume then said that she had been stealing or was classed as stealing as she was getting paid when she was not there.
He told her that there was a printout of when she closed the bar. She told him that it did not matter what time she closed the bar, it was the time she actually left the club because there were other things to be done.
When this conversation was taking place there were other people at the bar.
Generally
The plaintiff said in cross‑examination that Mr Harvey sat at the end of the bar virtually every day when he wasn't playing bowls and abused her every day from when he resigned as chairman of the bar at the end of January 2008 but it started getting worse in or around April 2008. Until Mr Harvey resigned she had no problem with him.
From about April 2008 she said that he started calling her a fucking bitch and similar things at which time he would be with his wife, Mr Fitzgerald and Mr and Mrs Mitchell.
Between April 2008 and 11 December 2008 she said that Mr Harvey and his wife would say to her or about her in her hearing that she was a 'fucking bitch', 'all barmaids are fucking bitches', and 'what the fuck's she doing'?
She said that Mrs Harvey would say those or similar things to her every night. She said that both Mr and Mrs Harvey would use the word 'cunt' towards her.
At the time they did that there would be Mr and Mrs Mitchell, Wayne and Kelly Bezant, Bob Arendt and his wife and others in the bar.
She said that Mr Fitzgerald would say the same sort of things on the occasions that he was there on a Friday and Saturday.
She said Mr and Mrs Mitchell were at the bar on Tuesday, Thursday, Friday and Saturday. They would laugh along with the others' comments.
The Arendts used to be there at the same time as the Mitchells. They would not direct the same sort of abuse at her, but they would play along with it.
She said that Mr Harvey would use the word 'cunt' in sentences towards her often as would his wife but not as often as her husband. She said during the period she was bar manager Mrs Harvey used that word towards her more than 20 times.
She said that this conduct was happening over periods of three to six hours with regularity. At the time that she was the subject of this abuse she said there were other people in the bar including other committee members.
Mr O'Brien would have definitely have heard what was being said but he did not do anything about it.
Madge Bicknell was not always there but was there from time to time. She did not know whether she would have been able to hear what was being said.
Mr Symons was there and should have been in a position to hear some of what was being said. She did not complain to him because he was not anything to do with the committee.
She said Mr Unicume sat near the Harveys and the others on a Friday night and yet he did nothing. She did not complain to him. He was the treasurer but she knew he would not do anything. Her points of contact were Mr O'Brien and Mr Smith.
11 December 2008
Mr O'Brien told her that Mr Unicume wanted her to shout last orders at 7.00 pm. She said that she told Mr O'Brien that there was no way that she could do that because there would be an uproar particularly from Mr Harvey.
She said that Mr O'Brien told her that she could make it 7.15 pm and said that he would have a word with Mr Harvey.
This was a Thursday night where the bowlers would come back from bowling at another club. It was about 7.00 pm and she thought that Mr O'Brien had spoken to Mr Harvey.
She said that she called the last orders at 7.20 pm and told those in the bar that they could still have a drink at 7.30 pm but she had to call last orders. Mr Harvey started shouting 'you fucking bitch'.
She said that he kept on saying it and she kept on saying to him: 'Wally you have been on the committee. I haven't just decided today to call last orders at this time. You know how it works. Phone Bluey. Speak to Alf'.
She said Mr Harvey made a telephone call to Mr O'Brien and was shouting down the phone to him saying 'you know what she is doing is wrong'. Mr Harvey then marched up and down the bar shouting 'you fucking bitch. You fucking bitch' and then he stormed out.
The plaintiff said she phoned Mr Smith. She was upset and said to him 'you know Alf I just can't take any more of this. I knew this would happen. I tried warning yous. You know what he is like'.
Mr Smith said 'don't worry, he's gone too far now, don't worry. We can get something done about it now. He's gone too far. It's not like he is a good bowler anyway, we can do without the likes of him'. She said she honestly thought that they would do something then. She made an entry in the incident book (the entry being exhibit 8).
The plaintiff said she spoke to Mr Smith and Mr O'Brien on the Friday night. She asked Mr Smith what was going to happen with Mr Harvey. Mr Smith told her that unfortunately the problem was that Mr Harvey was denying it and that she had no witnesses.
She said that she told Mr Smith that people were there and she named the other people. He said that no‑one had come forward and it was her word against Mr Harvey's and he had already denied it.
After she had spoken to Mr Smith she told Mr O'Brien the same as what she had told Mr Smith. Mr O'Brien told her that no‑one was saying they heard anything and it was her word against Mr Harvey's.
Garry Lockett
He said that in 2008 the plaintiff told him that she was concerned about serving alcohol to some of the patrons. He said he spoke to Mr O'Brien on many occasions. On one occasion he put the scenario to him that if the plaintiff continually served someone knowing that they were intending to drive home when they had had too much to drink then she would be liable.
Mr O'Brien replied that that would not really be applicable because it happened in Northbridge all the time.
In October 2008 he was in the bar and there was Liz Chapman, Mr Symons and Keith Edson, Craig Edson's father. Donna, a friend of the plaintiff was working at the time behind the bar. As he walked through he heard Mr Symons make sexual remarks as to what he felt Mr Lockett would be doing with the plaintiff and her friend.
He said he sent a letter to the club dated 24 October 2008 (exhibit 44) in which he made a complaint about that incident.
He said he then spoke to Ms Bicknell and Mr O'Brien about it and both of them said that there were no witnesses.
Mr O'Brien asked him whether they could sort the matter out if there was a meeting with Mr Symons. He said he told Mr O'Brien that it was pointless because it was not like it could be disputed.
He agreed that there was an executive committee meeting arranged to talk about the matter and it was hoped that he would be there. He said that he did not go because he did not know that the meeting had been arranged.
He received a letter from the club dated 3 November 2008 (exhibit 48) in response to his letter of 24 October 2008. In that letter he was advised that his complaint was disputed by those named in his letter but that those persons were willing to meet with him to discuss the matter.
He agreed that the club was trying to sort it out between the parties involved.
Mr Lockett said that he used to help the plaintiff behind the bar on Friday nights until October/November 2008.
In his evidence he did not make any reference to observing the bad language and bad behaviour which was described by the plaintiff as having been directed at her continuously when she was working.
11 December 2008
He had gone in at about 7.20 pm to collect the plaintiff and sat at the bar with his son.
Mr Harvey was at the bar. The plaintiff called last orders and Mr Harvey erupted saying 'You fucking bitch. You know it's 7. You know it's half 7 Julie. You fucking know it's half seven'.
He said that the plaintiff told Mr Harvey that he knew that she had been told by the committee that it was to be called at quarter past seven to which Mr Harvey responded 'You are a fucking bitch, Julie. You are a fucking bitch'.
She then said to him 'If you want to, ring Bluey'.
Mr Lockett said that Mr Harvey did not go outside but walked to the end of the bar and he saw him on a mobile phone.
He said that Mr Harvey did not speak with a raised voice on the phone but when he got off the phone Julie asked him what Bluey said. Mr Harvey repeated 'You are a fucking bitch. You know it's half 7'.
Mr Lockett said he said 'Wally, there's no need for that' and Mr Harvey said 'I'll say what the fuck I want. You got a problem with it come outside' to which Mr Lockett did not respond. Mr Harvey left.
He said that the plaintiff was later upset at home and was crying.
Bernard O'Brien
He was 69, retired and was previously employed in the Postmaster General's Department for 34 years before having a TAB franchise for four years.
He was, by the trial, chairman of the bar. He joined the club in February/March 2006. He was president between 2007 and 2010.
He said that in the summer period, Thursday would be busy in the bar after pennant games, as would Saturdays, Fridays and any function nights.
In winter there would be a mid‑week game on Wednesdays and games on Saturdays and on Sundays.
His observation was that the plaintiff seemed to be stern all the time.
He said that in his experience most bar people were happy and smiled but she seemed to be stern all the time and flustered as if it was a bit too much.
He said he could not recall her telling him about an incident in April 2008 where she said she felt threatened by a person at a 40th birthday party.
He denied the plaintiff's account in her evidence about the baseball bat. He said there was a little bat about 18 inches long which was kept under the bar counter. It was covered in black plastic and had been used for crushing ice before the club got ice machines.
He said that he said to the plaintiff jokingly once something like 'You've got to watch these three blokes [who] drink there – the Three Musketeers and if they get out of hand just give them a whack with that'.
Before 11 December 2008 he said that the plaintiff did not complain to him about the amount that the members were drinking.
He agreed in cross‑examination that his memory of events in 2007/2009 were a bit hazy.
He said he first saw the defendant's solicitors with respect to this matter in 2012.
He was shown a minute of a meeting of the executive committee on 29 October 2007 which referred to him having had a private discussion with Ms Scouller which he said he did not then remember. He said normally he remembered events if he had some evidence to jog his memory.
He was shown the incident book (exhibit 22) and was referred to the entry of Ms Scouller on 19 September 2007 making reference to an incident in which Mr Harvey was screaming and making a spectacle of himself. He said he had not seen that before.
He said if it was the club's book he would have to agree that there was a prior report to the club and himself about Mr Harvey's bad behaviour.
He agreed that the policy in the club was that if a complaint was made against someone, at the first instance there would be a written warning and if it continued there would be a suspension or expulsion.
He said that the plaintiff had a way about her that she did not like too many people which became evident early.
He said that he would be at the club on bowling days. He said he had never heard any of the members abusing the plaintiff.
He said that he took the view that when the plaintiff made a complaint to him it was not of a size where it could not be worked out verbally. He said he did not remember any complaint to him from the plaintiff about what was said at the bar – not anything extreme. He said as far as he was concerned the only incident he recalled was the one that they had the meeting about viz, 11 December 2008.
11 December 2008
He remembered being telephoned by Mr Harvey who said that 'Julie's trying to close the bar down early'. He said he told Mr Harvey that the committee had agreed that she could tell them to have last drinks a quarter of an hour before closing. He said that they could then pay for the last drink they wanted and then she could close everything down and start counting the money and when they wanted the drink she could pour it and by that time she would have finished what she had to do behind the bar and they would be ready to go.
He said Mr Harvey did not swear during that conversation. He thought it was about 10 past or quarter past 7 at night but he would not know which night. He said it was in December 2008.
He said he would have spoken to the plaintiff and he would have told her that she was correct, that the committee agreed with her doing what she did and he would have passed that on to Mr Harvey and the others the next time he saw them.
He said that the plaintiff told him that Mr Harvey had got very abusive and called her a fucking bitch.
He remembered that there was a committee meeting but was unsure whether it was with respect to that evening or a separate incident – where they called the committee together as quickly as they could to put an end to any arguing.
He said that they had to speak to people. In Mr Harvey's case the plaintiff was looking for a suspension.
He remembered a meeting with Mr Harvey who said that he had not said that at all.
He said that they did convene a meeting as quickly as they could in about three or four days trying to get everybody there.
The committee decided that the best course was to write Mr Harvey a very severe letter telling him that if it happened again there would be a lengthy suspension. A letter was written to Mr Harvey in those terms.
John Fitzgerald
He was 45. He was an electrical contractor who had been a social member of the club for about 12 years.
He would generally go to the bar on Fridays and Saturdays.
On Friday nights he said he sat with a regular group being Mr and Mrs Harvey, Mr and Mrs Bezant, Mr and Mrs Mitchell and Mr Arendt.
He would generally get there at about 5.00 pm. There would be 40 or 50 people on a Friday night. He said he never abused the plaintiff nor did he hear any others in the group he was with abuse her.
John Symons
He is a retired qualified metallurgist and had been a member of the club for 32 years.
He said that throughout 2008 he did not drink in the bar regularly.
In October 2008 he remembered a friend of the plaintiff's working behind the bar. He did not know her name was Donna.
He said he did not make any comments of a sexual nature concerning the plaintiff or Donna or Mr Lockett. He did not hear anyone do that.
11 December 2008
He was in the bar on 11 December 2008. He ordered a drink and went to a table and an argument started up about 12 m to 14 m from him between Mr Harvey and the plaintiff.
They were both shouting at one another. Mr Harvey was saying that being a member of the club he was entitled to be served and the plaintiff was shouting back that she was the bar manager and she had the right to serve whoever she pleased.
The bar was still fully open – the shutters were up. When the altercation occurred Mrs Harvey grabbed Mr Harvey by the arm and led him outside. There was no swearing that he heard.
He did not hear Mr Harvey calling Ms Wilson a fucking bitch nor did he see him walking up and down the bar repeatedly calling her a fucking bitch. He did not see Mr Harvey make a phone call.
He said that Mr Lockett and his son were seated at the far end of the bar closest to the entrance.
He did not hear Mr Lockett say anything or Mr Harvey say anything to Mr Lockett.
He reported the incident to the committee because in all the years he had been there he had never seen anything quite like that happen in the club before.
On the next day he came in about midday and gave Mr O'Brien his account of what happened and said that as far as he was concerned they both should be disciplined.
Eric Charlton
He is 76, retired and formerly was a member of the Legislative Council for 14 years. He joined the club in 2000. He was the vice‑president of the club. For the previous three years he had been the president.
He said that he was at the club on an almost daily basis. One had to walk through the bar to go anywhere outside the premises. He said that most days he would have a drink in the bar and that included 2008.
He said that he had been part of a lot of football clubs and bowling clubs and the like, and it was commonly accepted that Rossmoyne was a pretty stable, sound, conservative area. He said he had never heard anything in the bar which was untoward that would reflect on any individual at the club. He said that there was a strong requirement at the club of how you dress and present yourself in the club. And that members themselves would ask the question if they see something untoward about someone coming in who's a bit rough or doing a bit of shouting or whatever else.
He would normally have a drink about 5 o'clock three or four times a week.
Because he was prone to talk a lot and enjoyed the company of other people he would stay a lot longer than just to have a drink or two.
He said he had never heard anyone being rude or abusive to the plaintiff.
Alfred Smith
He was 84 and retired. He had worked in local government for 40 years.
He joined the club as a playing member in 1981/82.
In the early 90's he was on the selection committee and became chairman of selectors and in 2002 qualified as a national bowls coach.
He said in 2008 he helped out in the bar when they were busy.
Prior to 11 December 2008 the plaintiff did complain to him at times about the behaviour of members at the bar. He did not know anything specific but believed she was concerned about the attitude of some of the members.
He said that when he was working behind the bar, he did not see any members behaving badly. There were loud voices at times but he never really had any cause for concern.
He remembered that the plaintiff was concerned that some members might have more to drink than she believed was necessary or desirable.
Walter Harvey
He said that he played bowls regularly. He played pennants on Thursdays and Saturdays, practised on Fridays and played scroungers on Sundays.
He would have a drink in the bar when he finished with whoever he played with. He would sit at a usual spot at the end of the bar with a regular group of about 12.
After he resigned as bar manager, and before 11 December 2008, neither he nor his friends abused the plaintiff. He did not swear at her or make comments of a sexual nature towards her.
He said that before the plaintiff started wanting a pay rise it was alright to have fun with her but then people sort of 'knew to keep back a bit and be more careful around her'.
He remembered an occasion when her mother was there and Dave Manchester did a dance. He said that Dave Manchester was a funny bloke and could pull all different voices and could sing songs in voices and make things up as he went along and it was amusing.
He denied that he or his wife ever said words to the effect that 'she's only the fucking barmaid'.
He said that if the plaintiff was trying to get at him and was getting out of hand he would say that she did not own the bar, that she only worked there. Generally he would not swear in that situation but if he got hot under the collar he would.
During Mr Harvey's evidence there were these exchanges:
Did you and/or your wife direct comments to Ms Wilson such as, 'She thinks she's the president'?‑‑‑I didn't say you think – you own the bar. I never said the president.
Did you or your wife say words to the effect she's – and excuse the language, 'She's only the fucking barmaid'?‑‑‑No. Well – no.
Did you swear at ‑ ‑ ‑ ?‑‑‑That's what I said, no.' No. I mean you do ‑ look at the end of the day, you know –
… I mean if you – if you – if you – she's there and she's trying to get at me and she (indistinct) getting out of hand, you know. You don't own the bar, you know, you only work here. You know (indistinct). But generally you – you wouldn't swear in that situation or – or if I got hot under the collar I would. That's fair enough, you know, but generally if I'm going to instigate a conversation I won't do it. But at the end of the day she was there, it's a club situation and she – she was the bar manager. And that was it.
And later in cross‑examination the following:
And Mr Harvey, I put it to you that in the period I believe you resigned as bar president at – was it the end of January 2008?‑‑‑When I – yeah, it is, yeah.
Following that, that yourself and other members of you – of your group made derogatory comments which were directed at Julie Wilson?‑‑‑Mate, we may well have said stuff. I don't – I mean, I never said anything to Julie.
There could‑there could have been something said, but not from you?‑‑‑Well, mate, I'm sure there was. I'm pretty sure there would have been.
11 December 2008
He said he had been bowling and was having a few drinks with others.
The plaintiff's partner Garry came in with his son and sat at the end of the bar.
He thought it was about 6.45 pm but it may have been 7.15 pm. The plaintiff said 'last drinks' with a big smile on her face and said 'go ahead and ring Bluey if you want'. He said that he thought that the plaintiff was scheming to make people angrier and he became angry and quite upset.
He said that he would (ring Bluey) and told her that she was just being a bitch about it.
He walked out the back door near the greens and rang Mr O'Brien who told him that the committee had decided to close the bar at 7.00 pm so the plaintiff called last drinks at 6.45 pm to finish at 7.00 pm. He said that it may have been 7.15 pm finishing at 7.30 pm.
Prior to that, the rule used to be that the bar would stay open as long as there were six or more members.
He said he told Mr O'Brien: 'Mate, you know, you can't start closing the bar at quarter to 7 when people are playing games down at Safety Bay. They don't finish down there till quarter past 5, they have to have a drink there and something to eat and then they drive back into traffic and they're not getting back in until half past 6'. He asked Mr O'Brien to bring it up at the AGM.
He said there was then an exchange with the plaintiff. He said that the plaintiff said something to him and he said something back but he did not exactly remember what it was.
His wife grabbed him and said 'Look, just go, we'll sort it out tomorrow'.
He said that the plaintiff had come back at him when he came back from talking to Mr O'Brien and he may well have called her a 'fucking bitch'. He did not think he was walking up and down the bar when he did so.
As he was leaving, Mr Lockett said to him, 'Less of a bitch with the young fellow here' and Mr Harvey said he walked back and said to him 'Go outside then'.
He said that he did not say 'Come outside and sort it out'.
He was called before the committee. They asked what his version was and he told them.
He said to the committee that all of it could have been avoided if there had just been a sign put up and the plaintiff did not wait to antagonise the situation at 6.45 pm on the dot when everyone had had a couple of drinks.
He agreed with the proposition put to him in cross‑examination that the bowling club is not like a pub. It is a small place where friends can get together and have a few beers.
Susan Mitchell
Her husband is Ron Mitchell.
Her husband had been a social member of the club for seven or eight years.
She first met the plaintiff when she was working at the IGA in Rossmoyne.
After the plaintiff became the bar manager Mrs Mitchell said that she used to go to the club on Friday night and Saturday but not during the week. She would sit with a group including her, Mr and Mrs Bezant, (who were her son‑in‑law and stepdaughter), Mr Fitzgerald and Mr and Mrs Harvey.
She did not have a lot to do with the plaintiff but on Saturday afternoons she did volunteer work for the men's pennants during which she made sandwiches and she and the plaintiff would talk.
She said she had never heard personal abuse directed at the plaintiff on any occasion she was in the bar. She said that from April 2008 when she was at the bar there were never any derogatory comments made towards the plaintiff by her or anyone in her group.
She said she had never heard any swearing directed at the plaintiff from anyone in their group. She had heard swearing in the bar but not at the plaintiff.
Karen Harvey
She said that she and her husband had known the plaintiff for about six years.
Before the plaintiff started working at the bowling club the couples socialised.
She said that she was a social member of the club and from November 2007 to early 2009 she would go down to the club from time to time. She said her husband would play pennants on a Thursday and she would usually drop in on a Thursday after pennants and would also meet their friends on a Friday night but not so much on a Saturday. They had a usual group of friends.
She said she never called the plaintiff any names. She said she never swore at her.
She said that none of the people in her group called the plaintiff names when she was there.
From April 2008 to 11 December 2008 she did not hear any people in her group make derogatory comments towards the plaintiff and said that she did not make derogatory comments to her.
She said that she did not hear anyone in their group when she was there direct any sentence or expression towards the plaintiff using the word 'fuck' or 'cunt' and nor did she.
11 December 2008
She said she was a bit vague about the incident. She remembered that the plaintiff changed the closing time. She said that she was not sure of the time but she said the plaintiff said 'That's it. I've closed the bar, you know'.
She said her husband said 'Well, you can't close the bar. You have to give last drinks to start with. But the bar doesn't close at this time. You've still got another hour. You just can't do that on your own bat'.
The plaintiff pretty much said 'Yes I am. That's the way it is'.
Her husband was annoyed and there was a bit of an argument and she said to her husband 'Come on, let's go'.
She said as they were walking out they passed the plaintiff's partner. He called her husband back in but she continued on and her husband came back out about 10 seconds later.
She said that she heard her husband say something like 'Why are you being such a bitch about this? What's happening? Why are you being a bitch about this situation' or something like that. She did not hear any other swearing than that. She said that nothing was said by the plaintiff to the effect that she had been told that the bar opening hours had changed.
It was put to her in cross‑examination that the plaintiff did not in fact just close the bar and that she called 'last drinks' to which Mrs Harvey said that she honestly did not remember that. She agreed that it was quite a while ago.
She said that her husband was standing pretty much in the same place when he and the plaintiff were talking. She agreed that her husband was speaking loudly.
She said that she did not hear her husband call the plaintiff a fucking bitch.
For the reasons to which I have already referred in respect to the common law claim I do not consider that the defendant was in breach of any of the express or implied terms of the employment contract.
In addition, it cannot be said, in my view that when the defendant entered into the contract of employment, given the nature of that contract, it impliedly accepted the risk of liability for loss which it knew or should have known would probably result from a breach. To that end the risk of psychiatric injury to the plaintiff resulting from a breach was in my view so remote as to be far‑fetched or fanciful.
The claim in contract fails.
Workers' Compensation Act
Given my findings it is not strictly necessary for me to make a finding in this regard. However, again for completeness, I will do so.
The plaintiff's claim for damages falls to be determined having regard to and in accordance with pt 4 div 2 of the Workers' Compensation Act.
Section 93K(4) of that Act provides:
Damages in respect of an injury can only be awarded if ‑
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
The degree of permanent whole of person impairment (PWPI) means the degree evaluated in the manner described in s 146A and s 146C of the Act and is to be evaluated, as a percentage, in accordance with the WorkCover Guides.
It is for me to determine whether I am satisfied that the plaintiff's degree of PWPI resulting from psychiatric injury for which the defendant is liable is at least 15% evaluated in accordance with the WorkCover Guides.
The relevant WorkCover Guides are contained in the 3rd ed which recites that WorkCover WA has introduced guides for the evaluation of permanent impairment based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
By the WorkCover Guides:
3.6Assessing permanent impairment involves clinical assessment and determining:
(i)whether a worker's condition has resulted in impairment;
(ii)whether a worker's condition has stabilised to the extent required for an evaluation of the degree of impairment (has reached maximum medical improvement (MMI));
…
(iv)the degree of permanent impairment results from the injury;
…
3.7cThe AMS should be clear that only impairments that relate to the relevant work injury can be taken into account when calculating a claimant's degree of permanent impairment.
…
3.31An assessment of a worker's degree of permanent impairment is only to be conducted when the AMS considers that the worker's condition has stabilised to the extent required for an evaluation of permanent impairment.
This is considered to occur when the worker's condition is unlikely to change substantially in the ensuing 12 months with or without further medical treatment (ie, further recovery or deterioration is not anticipated). At this stage the worker has reached maximal medical improvement. An evaluation of permanent impairment can only be under taken if the worker has reached MMI, except if a special evaluation is required.
3.33If a worker has been offered, but refused, additional or alternative medical treatment that the AMS considers is likely to improve a worker's condition, the AMS should evaluate the current condition, without consideration for potential changes associated with the proposed treatment. The AMS may note the potential for improvement in a worker's condition in the evaluation report, and the reasons for refusal by the worker, but should not adjust the degree of impairment on the basis of the worker's decision.
…
Clause 3.36 provides that in limited circumstances a special evaluation can be undertaken. Those limited circumstances are outlined but none apply to the present case.
Plaintiff's refusal to take medication
Both psychiatrists were of the opinion that the plaintiff's treatment would be assisted by appropriate medication however the plaintiff said that she was not prepared to take medication because she feared that she would become addicted to it and also feared the side effects.
Initially counsel for the defendant asserted that there was an unreasonable failure on the part of the plaintiff to mitigate any loss by refusing to take prescribed medication. However counsel conceded in closing submissions that because the issue of failure to mitigate was not pleaded it could not be later raised against the plaintiff.
Form of Dr Ng's AMS 5 report on evaluation of the degree of PWPI
Counsel for the defendant submitted that the assessment made by Dr Ng was on a Special Evaluation form and was couched in the following terms:
In arriving at the 19% permanent psychiatric impairment figure I have only used the enduring psychiatric difficulties caused primarily by the emotional trauma of the incident itself.
As per the WorkCover WA Guides for the Evaluation of Permanent Impairment (3rd edition), an assessment of psychiatric permanent impairment can only be done when a worker's condition has stabilised (ie, reached maximum medical improvement).
I believe that her psychiatric condition may well somewhat improve if she can find closure regarding any outstanding medico‑legal issues.
Hence I have provided a special evaluation.
Whilst counsel's observations are correct, it is a matter for me whether I am satisfied that the plaintiff's degree of PWPI is at least 15%. I am able to inform myself on all relevant evidence in whatever form that might be. To that end I concur with the observations made by Martino DCJ in Armitage v Tenix Defence Pty Ltd [2008] WADC 150 [71].
In his report of 24 April 2014, Dr Terace proffered the opinion that the plaintiff's psychiatric condition had not been adequately treated pharmacologically and/or psychotherapeutically and as such ought not be considered treatment resistant such that maximal medical improvement had not yet occurred. As a consequence he did not believe that the plaintiff's degree of PWPI could be calculated at trial because maximal medical improvement had not by then occurred.
Counsel for the plaintiff submitted that Dr Terace had acknowledged that in the past the plaintiff had declined the use of antidepressant medication and that she continued to do so. As a consequence counsel submitted that by reason of cl 3.33 of the WorkCover Guides it is necessary to evaluate the plaintiff's condition without consideration for potential changes associated with proposed, but refused, treatment.
In that regard, the submission by the plaintiff's counsel is correct.
Whether I am satisfied that the plaintiff's degree of PWPI is at least 15%
I am not satisfied that the plaintiff's degree of PWPI resulting from any psychiatric injury sustained by her in her employment and for which the defendant is liable is at least 15%. My reasons are:
(a)To a significant degree the opinions expressed by Dr Ng and Dr Terace depended upon the veracity of what the plaintiff told them about matters relevant to their respective diagnoses and opinions.
(b)Until each of the psychiatrists considered the surveillance reports and DVD material each of them accepted what they were told by the plaintiff as being a true reflection of the matters relevant to the extent and nature of her psychiatric injury.
(c)Upon viewing and considering the surveillance material each of them considered that it demonstrated the plaintiff appearing and acting in a way which was inconsistent with what she had conveyed to them during the course of consultations to which they referred and with respect to her asserted hygiene and appearance. It is of course a matter for me to consider the significance of any inconsistencies in light of all of the evidence in this case in assessing the issues which fall to be determined. Having said that, in my view Dr Ng and Dr Terace were best placed to give evidence about the facts and observations upon which they based their respective opinions following consultations with the plaintiff and how those opinions altered upon assessing the surveillance material.
(d)In his report of 11 December 2012 Dr Ng felt compelled to make an assessment of an estimated degree of PWPI once the plaintiff's psychiatric condition had stabilised, at 8%. He said that her current psychiatric impairment level was greater than 8%. He opined that the plaintiff continued to experience chronic depressive and anxiety symptoms to a mild/moderate extent. He was then invited by the plaintiff's solicitors on 13 December 2012 to reconsider that assessment. In response, in his report of 14 December 2012, he assessed the plaintiff's current level of psychiatric impairment using table 13.7 of the WorkCover Guides at 9% whole of person impairment. On 6 February 2013 further information was forwarded to him by the plaintiff's solicitors and he was requested to advise whether there was any adjustment to his opinion of 11 December 2012. In response, having considered that information, he refused to make any adjustment stating that 'the opinion that I arrive at has to be based on sound clinical judgment rather than from any medico‑legal implications'.
(e)Dr Terace reviewed the surveillance reports (not at that time the DVDs) and in his report of 17 July 2012 opined that he could not calculate PWPI given that maximal medical improvement had not yet occurred but that the current level of impairment based on the level of function observed in the surveillance reports, the level of activity and the mental state demonstrated by the plaintiff resulted in him assessing her whole person impairment at 0%. In evidence he said that in his experience the PIRS is flawed because the plaintiff could still have a mild psychiatric condition and thus have a present whole person impairment, but the nature of the methodology of the PIRS is that it means that the person with a mild psychiatric condition achieves a score of zero even though the person has an impairment.
He opined that the plaintiff's presentation may be consistent with the presence of a mild psychiatric condition.
By December 2012 it had been four years since the plaintiff suffered some psychiatric injury. Although there was no final assessment of the plaintiff's PWPI, there was an indicative assessment of no more than 9%.
(f)By December 2012 both psychiatrists proffered the opinion that the psychiatric condition of the plaintiff would likely improve following the finalisation of the present litigation. Those opinions were supported by the evidence of Dr Hoare with whom the plaintiff regularly consulted and, as the plaintiff said in evidence, Dr Stevens from Bentley Mental Health.
(g)The plaintiff said in evidence that her solicitors told her of the effect on her case of Dr Ng's re‑assessed estimate of the PWPI percentage should it be maintained at trial. In addition, Dr Ng said that he could not discount that fact as a matter which would affect her deterioration.
(h)There is then an asserted deterioration in the plaintiff's psychiatric condition between March 2013 and the trial. The plaintiff told Dr Terace (as was the fact) that she attended a pre‑trial conference in this court on 11 March 2013 which did not go well and in respect to which she was very upset. Her claim did not settle. It was on that day that she said that she took an overdose of paracetamol with wine.
(i)Dr Terace in his report of 24 April 2014 and in his evidence at trial opined that there were a number of non work-related psychological stressors which he considered had probably led to clinical deterioration in the plaintiff's psychological condition since his last interview with her. Those non work-related stressors being:
•Her unsuccessful unfair dismissal claim and appeal.
•The plaintiff's marital separation as of September 2011.
•The chronic financial difficulties since the cessation of her wages in or about 2010.
•The cessation of treatment with a clinical psychologist in late 2012.
•The medico‑legal and workers' compensation process including the plaintiff's requirement to attend mediation twice with her legal representative.
•Her anxiety relating to the inadequacy of legal funds (which might result in her legal representative not continuing to represent her) and the possible financial exposure if her case was not successful.
•Her attendance at the District Court on 11 March 2013 where the matter was deferred which the plaintiff told him she perceived as being very stressful at the time after which she took an overdose of paracetamol and alcohol.
•Her anxiety about attending the District Court in May 2014.
To those factors it is my view reasonable on the evidence to add the anxiety caused by the percentage re‑assessment by Dr Ng confirmed in February 2013.
(j)Dr Terace's opinion was that the plaintiff's [then] incapacity and the treatment required was not as a result of any alleged incident in the workplace given the distance in time, the absence of initial antidepressant treatment, the inadequacy of present pharmacological and psychotherapy and with particularity the large number of non work‑related psychosocial stressors which he believed were the predominant cause of the maintenance of her psychiatric condition and any deterioration in it. He said that those factors were the predominant cause of the plaintiff's present mental state and not any alleged incident in the workplace.
(k)Although Dr Ng in his special evaluation in arriving at a 19% permanent psychiatric impairment said he had only used the enduring psychiatric difficulties caused primarily by the emotional trauma of the incident itself (being the 11 December incident in accordance with the plaintiff's instructions to him) he made no reference to the impact on the plaintiff's psychiatric condition and his assessment of the plaintiff's percentage PWPI of the non work‑related stressors listed by Dr Terace which he opined were the predominant cause of her psychiatric condition at trial.
(l)In those circumstances I prefer and accept the evidence of Dr Terace about the impact of those non work-related stressors on the psychiatric condition of the plaintiff at trial.
In my view, in this case, the plaintiff has been driven by an unjustified sense of grievance about the nature of the sanction imposed by the defendant on Mr Harvey and the unjust responses of the defendant as she saw them which did not accord with her wishes.
I am satisfied from the evidence of Dr Terace that the non work‑related psychological stressors which he said were the predominant cause of the plaintiff's mental state do not result from any alleged injury suffered by the plaintiff in the defendant's workplace.
As a consequence I am not satisfied that the plaintiff's degree of PWPI is at least 15%.
Provisional assessment of damages
In this case, given my credibility findings concerning the plaintiff, it is impossible for me to make any provisional assessment of damages.
The plaintiff's claim is dismissed.
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