Perrins v Woolworths Limited (Unreported, District Court of Queensland, Botting J, 24/04/2015)

The plaintiff was an employee of the defendant business and sought damages for pure psychiatric injury as a result of workplace bullying. Specifically, the plaintiff was twice offered management training with the view that he would then be considered for a management position only for the offers to be cancelled at the last minute by the defendant, despite both offers being accepted by the plaintiff. This resulted in additional bullying and mocking by fellow employees of the defendant company. Over the course of the trial His Honour Botting J discussed a number of inconsistencies regarding the plaintiff’s credibility regarding his attitude [6];

“On the second day, more so than the first, he seemed to focus less on giving direct answers to the questions asked of him, and at times became argumentative with defence counsel.”

His memory [7];

“There were several occasions when it was demonstrated, at least to my satisfaction, that his memory was, for one reason or another, inaccurate. For example, his oral 4 evidence as to the conversations with Mr Cook when he was advised for the second time that he would not be commencing the training course differed significantly from the account he gave in writing on 5th August, 2010.”

And his drug use [11];

“He is a man who has, for a significant part of his life, been a user of illicit drugs, including, in his younger days, narcotics. My own experience, both at the bar and on the bench, has shown me that those who use such drugs over a significant period of time will often (but not invariably) become manipulative, and can make excellent liars.”

His Honour also made note of the fact that the plaintiff had been subject to psychiatric and psychological issues over many years due to heavy drug use including heroin, amphetamines and marijuana, being molested by an acquaintance when he was a young teenager and suffering the loss of one of his children. His Honour stated at [12] that:

“Furthermore, on any view of the medical evidence in this case, it is clear that the plaintiff has been troubled over many years with psychiatric and psychological issues. One cannot ignore those problems when assessing his evidence in this case.”

Nevertheless, His Honour found in favour of the plaintiff on the grounds that it was reasonably foreseeable that the defendant’s actions would cause psychiatric damage, even to someone of robust health. The plaintiff was awarded the nett damages of $585,152.74 (gross $639,060.53 before the defendant’s WorkCover payments were deducted), including:

  1. General damages $38,000.00
  2. Out of pocket expenses $14,517.30
  3. Past economic loss             $170,000.00
  4. Interest of the above $11,200.00
  5. Fox v Woods $8,043.23
  6. Past superannuation $15,300.00
  7. Future economic loss $340,000.00
  8. Future superannuation $33,000.00
  9. Future medical expenses $9,000

An interesting comparison can be made between the case of Perrins v Woolworths Ltd and Palmer & Ors v State of Queensland – both cases involved workplace bullying claims and poor managerial practises however the outcomes were very different. In Palmer, it was found that the defendant was not vicariously liable for the actions of its employees as making complaints about other employees do not fall under the general duties of one’s employment. His Honour McGill J said at [101]:

“The acts of Ms Johnson referred to in paragraph 5 are making the complaint against Ms Hayes, lodging the fair treatment appeal, and being rude to and speaking over Ms Palmer in her interactions with her. I can say at once that in my opinion the first and second of these were clearly not acts done in the course of her employment. Her job was to act in effect as supervisor of the RCOs who were working at particular houses caring for residents; it was no part of her job to be complaining about Ms Hayes or anyone else, nor was there any connection between her job and the making of that complaint, other than the fact that it provided a setting for the interactions between Ms Johnson and Ms Hayes which prompted Ms Johnson to make the complaint. The fact that the defendant has a mechanism in place for dealing with complaints by employees against superiors does not mean that the defendant is clothing the employee with authority to make such complaints, or that a complaint is or could be seen to be part of what the employee was employed to do. In my opinion it is clear that the defendant is not liable for these acts of Ms Johnson. The same applies to the acts of RCOs in making complaints.”

To establish vicarious liability, Gummow & Hayne JJ in New South Wales v Lepore stated:

“Vicarious liability may exist if the wrongful act is done in intended pursuit of the employer’s interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer’s business or in the apparent execution of authority which the employer holds out the employee as having.”

The circumstances therefore in Perrins differ from those in Palmer, as the training and appointment of new managerial staff would generally fall under the usual employment duties of a manager employed by the defendant company.

In terms of reasonable foreseeability, McGill J in Palmer, although sympathetic, found that the injuries sustained by the plaintiffs were not reasonable foreseeable. His Honour said at [156]:

Although the test for reasonable foreseeability is not a high one, it is apparent from the authorities that it does not follow simply from the fact that a person is exposed to something likely to be found unpleasant, distressing or stressful. On the whole, I am not persuaded that there is a duty not to cause psychiatric injury in this way, and therefore necessarily there was no duty to provide support to avoid or reduce the risk of psychiatric injury in such circumstances. In any case, even if the risk of psychiatric injury was reasonable foreseeable, I do not consider that the risk was so great as to justify any particular precaution in response.”

Additionally, it was noted that although prior complaints had been made about the employee of the defendant company in question, these were merely about rude behaviour as opposed to complaints about bullying and for this reason among others, foreseeability of the injury was not possible. In Perrins however, there was evidence to suggest that the plaintiff had formally complained to a manager;

[120] “At the end of the day I am persuaded that I should accept the plaintiff’s evidence that he made a complaint to his team leader.”

The plaintiff had, despite his troubled life, attempted to take steps to move on with his life;

[121] “I also accept the plaintiff’s evidence that, by February 2009 the plaintiff was, as he said to Mr Rodriguez, someone who “had various substance abuse problems in [his] past and that [he] had worked past them/ And [he] was putting [him]self back into the workforce and was building [him]self back up.”

And finally, and most importantly, that considering the defendant company was aware of the plaintiff’s background, the risk of psychiatric harm should have been reasonably foreseeable. Upon accepting the offer to begin management training the second time, the plaintiff sought reassurance that he would begin the program from Miss Render, the employee responsible for planning and implementing the training course, as he felt that he would be unable to bear the disappointment of being removed from the course again [130]. Additionally, the plaintiff had disclosed his history with Mr Rodriguez, the DC manager, regarding his prior drug use and psychological trauma from losing his infant son. The plaintiff said at [31]:

“While I was in there I explained to Orlando [Mr Rodriguez] my entire history of the fact that I’d been a drug abuser. The fact that I’d lost a child and had suffered some depression, and that I’d worked my way through it. And I explained to him how I’d worked my way through it, how I’d cleaned myself up, and where I wanted to aim towards getting, and he was happy with that … I relayed to him everything [criminal background] that had been in my past, because he was the person that was giving me a final decision, so I thought it was only fair he knew everything there was to know.”

This pivotal evidence established the causal link between the acts of the defendant and the injury sustained by the plaintiff, thus overcoming the hurdle of vulnerability. His Honour decided:

[146] “In my view, bearing in mind what the defendant, through its various agents, knew of the plaintiff, it should have realised that in treating him the way it did there was a real risk that his reaction would be far more serious than mere disappointment at missing out again.

[147] In my view, it would have been foreseeable that such treatment would have a likelihood of causing psychological damage, and even psychiatric damage, to someone in robust health.

[148] Bearing in mind what the defendant company knew of the plaintiff’s background (from the conversations with Mr Rodriguez and Miss Render referred to above) I conclude that it should have been foreseen by the defendant that if it acted as it did the plaintiff would suffer significant psychiatric injury.”

Whilst there was limited discussion in terms of breach, His Honour found that the actions of the defendant were not reasonable by stating:

[156] “In paragraph 7.8 of the Amended Defence the defendant pleads that any psychiatric injury suffered by the plaintiff was ‘a consequence of reasonable management action taken in a reasonable way by the defendant.’

[157] I think it will be very apparent from what I have written above that this plea must fail. In my view the actions of the defendant, and in particular those of its agent Miss Render, cannot on any view be said to be reasonable.

[158] I will not catalogue all of the shortcomings which, it appears to me, the defendant has been guilty of. Suffice it to say that in February 2009 the company knew exactly how many days the plaintiff had been absent. Miss Render took no steps to ascertain details of his absenteeism. Miss Render considered his absences such as to disqualify him from participating in the course. In those circumstances the decision to offer him a place on the Management Trainee Course cannot be said to be ‘reasonable management action;’ a fortiori the company’s actions in May, 2010.”

When considering the medical evidence with respect to the plaintiff of Dr Byth (for the plaintiff) and Dr Steinberg (for the defendant), His Honour found himself much more persuaded by Dr Byth’s approach [201]. His Honour became concerned that Dr Steinberg continued a consultation with the plaintiff despite the fact that the doctor formed the view that the plaintiff was intoxicated from amphetamine use at the time. Upon being question by His Honour, Dr Steinberg said at [199]:

“I’m experienced at interviewing many people under many clinical circumstances and some people do present as intoxicated. I have experience in interviewing intoxicated people over many years. But – because it happens from time to time in psychiatry. Not an unusual clinical scenario. And certainly, from time to time, doing interviews for the court, patients might present intoxicated.”

It was for this reason that Dr Steinberg was of the opinion that the plaintiff’s psychiatric symptoms could be explained by illicit drug intoxication, withdrawal and dependency in combination with his antisocial and narcissistic personality traits [192]. Dr Byth however had a very different view and stated at [200]:

“If it [a patient presenting intoxicated] happened to me I’d discharge the person and say I couldn’t interview them until they’d sobered up and I wouldn’t proceed – or you normally would not be able to proceed with an interview if somebody was intoxicated with either of those substances.”

Both doctors agreed that the plaintiff had suffered injury due to his workplace experience, however they disagreed on the extent of the condition and whether the plaintiff still suffered from it [211]. With respect to Dr Steinberg’s approach, His Honour stated at [207]:

“Dr Steinberg’s understanding of the facts differs from the view that I take in a number of respects. In particular, I take the view that some of the defendant’s agents acted in a cavalier and insensitive fashion towards the plaintiff, and I can understand his various feelings of dismay and anger as a result of what they had done. Dr Steinberg seems to take the view that “management’s” actions were at all times reasonable, and the plaintiff’s response usually disproportionate.”

Dr Byth’s approach however was quite the opposite:

[171] “It is Dr Byth’s opinion that, as a result of stressful events in his work in 2009 the plaintiff has been suffering from an adjustment disorder with anxiety and depressed mood. He opines that this condition was caused by his difficulty coping with being denied a management course he had been promised and prepared for, and his being criticised (in the plaintiff’s view unfairly) for having time off work and for the pallet incident.”

It was for these reasons that His Honour accepted Dr Byth’s opinion [214].

In this respect, it is timely to remember that whilst it is common for psychiatrists to provide an opinion according to professionally accepted diagnostic criteria whether a particular event caused a psychiatric illness, it is not determinative and cannot usurp the role of the tribunal of fact. There is often a blurred line as to what an expert can provide evidence on and what is the ‘ultimate’ question to be determined by the judge.

In Tame v New South Wales (2002) 211 CLR 317 at [203], Gummow and Kirby JJ said:

“Nonetheless, questions of reasonable foreseeability are not purely factual.  Expert evidence about the foreseeability of psychiatric harm is not decisive.  Such evidence cannot usurp the judgment that is required of the decision-maker.”

To like effect, McHugh J said at [115]:

“It is for the tribunal of fact – be it judge or jury – to determine whether the defendant ought to have reasonably foreseen that his or her conduct might cause a person of normal fortitude to suffer psychiatric injury.  It is not a matter for expert evidence.  In Page v Smith, Hoffmann LJ said that “normal fortitude is a matter of judicial notice and does not require medical evidence or statistical inquiry”.”

Contributed by:

Thomas Clayworth, Honours Law Student at the Queensland University of Technology

Linkedin profile:  https://www.linkedin.com/pub/thomas-clayworth/74/7b5/9b3

NB:

Appeal overturned the trial decision –

Woolworths Limited v Perrins [2015] QCA 207

 

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