Elisha v Vision Australia Limited

1. The only issue for consideration is whether the respondent owed the appellant a duty of care concerning the incidents of his contract of employment - that is, a duty of care to provide a safe system of work that extends to investigation and decision-making with respect to discipline and the termination of employment. This was the appellant's alternative case. That duty of care relevantly includes, here, the manner in which the appellant's employment was terminated. The proposed duty of care, including its coherence with existing law, was sufficiently argued before this Court such that it is appropriate to address it here. This potential duty of care is to be distinguished from the well-established duty of care which an employer owes to an employee to provide a "safe system of work". That "system" is concerned with the performance by an employee of their work. The decision of this Court in Kozarov v Victoria[115] is a recent example of an application of that duty of care.
2. The decision of the Court of Appeal of the New South Wales Supreme Court in New South Wales v Paige[116] in 2002, discussed below, is dispositive of this issue. Nothing has happened since that might cast doubt upon its enduring authority. The Victorian Court of Appeal in the present case was thus correct to conclude that the respondent did not owe to the appellant a duty to take reasonable care in its implementation of the processes leading to, and resulting in, the termination of his employment.
3. The reason why there is no duty of care of the kind claimed by the appellant is the need for coherence of the law. A duty of care may not exist where it would otherwise "cut across other legal principles [so] as to impair their proper application"[117] or where it "would subvert ... other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms".[118]
4. In Sullivan v Moody[119] the issue was whether certain medical practitioners, amongst others, owed a duty of care. It was alleged that these practitioners had negligently diagnosed certain children as having been sexually abused. This led, generally speaking, to each person accused of abuse suffering "shock, distress and psychiatric harm".[120] Each child was diagnosed against the background of a statutory scheme, established by the Community Welfare Act 1972 (SA), for the promotion of the welfare of the community, including children. The scheme required certain individuals, including medical practitioners, to report a suspicion, held on reasonable grounds, that an offence had been committed against a child. It also provided that where such reporting had taken place in good faith, the practitioner incurred no civil liability. This Court held that no duty of care was owed to each person accused of abuse. It said:[121]

"The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm."

1. The need for coherence of the law explains the decision in Paige. In that case, the teacher of a State school claimed to have suffered psychiatric injury as a result of negligently performed disciplinary proceedings into his conduct. He sought damages. No duty of care was found to exist due to the presence of inconsistent and conflicting statutory regimes. Like the duty contended for by the appellant here, the duty of care alleged in Paige was not directed at the need to provide a "safe system of work" but to the incidents of the contract of employment itself, including the disciplinary procedures in issue. Spigelman CJ observed that such a duty was "novel" and would involve "an extension of employers' duties".[122] Amongst other things, it would result in incoherence with the law of employment.[123]
2. Spigelman CJ considered the decision in Johnson v Unisys Ltd,[124] where the House of Lords decided that there was no cause of action either in contract or in tort for loss flowing from psychiatric injury caused by the manner in which an employee was dismissed. That was, as Spigelman CJ observed, because of four identified factors. The first was the "creation of specialist tribunals as part of the United Kingdom's legal system to hear and determine unfair dismissal cases".[125] The second was "the limitation of the class of applicants who could bring"[126] such an action, which was an "attempt to balance fairness to employees against the general economic interests of the community".[127] The third was a limitation on the size of the awards that may be made.[128] The fourth was "the limitation on time for making an application ... and the workability of the duty or obligation contended for, in that causation would be almost impossible to establish with any certainty and would result in generalised awards, infringing the rule that there are no damages for dismissal per se".[129] The last observation is no longer applicable in this country, for the reasons given by Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ.[130]
3. Spigelman CJ then applied this reasoning to the Industrial Relations Act 1996 (NSW) and the Workplace Relations Act 1996 (Cth) ("the WR Act"). It is sufficient to set out his Honour's reasoning in relation to the WR Act. Spigelman CJ said:[131]

"The Commonwealth legislation ... is ... very similar in terms.

• Tribunals - s 8 of the Act creates the Australian Industrial Relations Commission, its membership and operation. Section 170CE provides that applications in relation to unfair dismissals are to be made to the Commission.

• Class of applicants - Under s 170CB the general application of the Act in relation to unfair dismissals is to Commonwealth public sector employees, Territory employees, Federal award employees in a constitutional corporation and Federal award employees engaged in various occupations, the governance of which is within Commonwealth legislative power pursuant to s 52 of The Constitution. Section 170CC and reg 30B limit the class of applicants by excluding those employed for a specified time period, a specified task, on probation of 3 months or less, a casual employee or trainee. Additionally, non-award employees earning above the specified rate (presently $64,000) are excluded from making applications.

• Size of award - The Act provides for a process of mandatory conciliation (s 170CF), followed (if unsuccessful) by an election of arbitration or court proceedings (s 170CFA). The awards of amounts in lieu of reinstatement as a remedy in arbitration (under s 170CH) and orders of payment made pursuant to court proceedings (s 170CR) are both limited by s 170CH(8) and (9). These amounts are limited to, in essence, the value of 6 months' salary but not exceeding, in the case of non-award employees, $32,000.

• Time for making applications - As in the New South Wales legislation, the requirement is to make an application within 21 days after the dismissal (s 170CE(7)) subject to the Commission's capacity to permit an application outside the time limit."

1. Spigelman CJ concluded that the statutory regulation of unfair dismissals constituted "a particular and carefully calibrated balancing of the conflicting interests involved namely, between preserving the expectations of employees on the one hand and enabling employers to create jobs and wealth, on the other hand".[132] It followed that matters concerning the creation and termination of a contract of employment should be left to the law of contract and statute, and no additional duty of care should be imposed over this extensive legal regime.[133]
2. Nothing has occurred since the decision in Paige that would compel any different conclusion today, save that, relevantly, the WR Act has been replaced by the Fair Work Act 2009 (Cth) ("the FW Act"). But nothing in the FW Act contradicts the reasoning of Spigelman CJ. Applying the same factors considered by Spigelman CJ above:

• Part 5-1 of Ch 5 of the FW Act established the Fair Work Commission ("the Commission"). An application for a remedy for unfair dismissal can be made to the Commission: s 394(1). Pursuant to Div 4 of Pt 3-2 of Ch 3 of the FW Act, the Commission can order reinstatement or the payment of compensation.

• A "national system employee" may bring an action for unfair dismissal against a "national system employer": s 380 of the FW Act. These terms are defined in Div 3 of Pt 1-2 of Ch 1 of the FW Act. As with the previous WR Act, the class of employees who may sue is limited.

• There remains a cap on the amount of compensation that can be paid to a person for unfair dismissal: s 392(5) and (6) of the FW Act. Pursuant to s 392(4), any order to pay compensation to a person must not include a "component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal" (emphasis added).

• An action for unfair dismissal must be commenced within 21 days after the time when the dismissal took effect or within such further period as the Commission allows: s 394(2) of the FW Act.

1. The Explanatory Memorandum which accompanied the Fair Work Bill 2008 (Cth) is instructive when explaining s 392(4) of the FW Act. It states:[134]

"Under subclause 392(4), any compensation ordered by [the Commission] must not include a component by way of compensation for shock, distress or humiliation caused by the manner of the person's dismissal. This reflects the common law position that shock, distress or humiliation resulting from the dismissal is not compensable (Addis v Gramophone Co Ltd [1909] AC 488 and Baltic Shipping Co v Dillon (1993) 176 CLR 344)."

1. That Parliament has enacted complex legislation on the basis, at least in part, of an apparent understanding of a prior decision of the House of Lords (namely Addis v Gramophone Co Ltd[135]) - which understanding is now considered by this Court to be incorrect - makes it all the more compelling that the duty of care to provide a safe system of work should not be extended in the way sought by the appellant.
2. Here, as found by the primary judge, the appellant did pursue an action for unfair dismissal in 2015.[136] That proceeding was settled shortly after it was commenced for the maximum amount payable under the FW Act (being an amount equal to 26 weeks of pay).[137]
3. For the foregoing reasons, the respondent owed no duty of care of the kind contended for by the appellant.

1. An employer botches its own disciplinary procedures by not informing an employee of key allegations that the employer ultimately considers in deciding whether to terminate the employee's employment and, therefore, fails to give the employee any opportunity to respond to those undisclosed allegations or a real opportunity to respond to the allegations in fact notified to him. In so doing the employer breaches terms of the employment contract. The employer unlawfully summarily dismisses the employee. The employee develops a serious psychiatric illness, which it is found was caused by both the botched disciplinary procedure leading to the unlawful termination of the employment and that unlawful termination. Does Addis v Gramophone Co Ltd[138] preclude the employee from recovering damages for the serious psychiatric illness that the employer's breaches of contract caused? Alternatively, are those damages too remote from the contractual breaches to be recoverable?
2. The primary judge in the Supreme Court of Victoria (O'Meara J) answered those questions in the negative, with the consequence that the employee was entitled to recover contractual damages for the serious psychiatric illness and the losses which the illness had caused and would cause the employee.[139] The Court of Appeal of the Supreme Court of Victoria (McLeish, Kennedy and Macaulay JJA) answered those questions in the affirmative, with the consequence that the damages award in favour of the employee was set aside.[140]
3. The Court of Appeal's answers to the two questions involve error. Accordingly, the appeal must be allowed, and the orders of the Court of Appeal set aside.

1. The appellant, Mr Elisha, entered a contract of employment with the respondent, Vision Australia Limited ("Vision"), in 2006. For the reasons given by Gageler CJ, Gordon, Edelman, Gleeson and Beech‑Jones JJ, the contract of employment incorporated Vision's 2015 Disciplinary Procedure insofar as, relevantly, that document said:

"2. Where informal counselling is not appropriate or where the concern is of a more serious nature, a formal disciplinary meeting will occur. Prior to the meeting, the employee will be provided with a letter containing a written outline of the allegations. The letter will request that the employee attend a meeting to respond to the allegations, and indicate that the employee may have a support person present. The letter will also indicate that disciplinary action up to and including termination may occur if the response is not satisfactory.

3. The meeting will be attended by up to two management representatives (one of whom may be a legal or industrial representative of Vision Australia). One of these parties will act as note-taker to record events. At the meeting, a discussion will occur and the employee will be given an opportunity to respond to the allegations.

4. Following the meeting, Vision Australia will make a decision as to whether the employee should be issued with a formal written warning, a final warning or termination of employment, or whether other appropriate action should be taken (ie training), or whether no action should be taken at all."

1. By these incorporated contractual terms, where Vision held a concern of a more serious nature than appropriate for informal counselling about an employee's performance or conduct Vision was required to: (a) provide the employee with an outline of the allegations against the employee in writing; (b) arrange a meeting between the employee and a management representative (or two management representatives) of Vision; and (c) give the employee an opportunity at that meeting to respond to the allegations, before deciding whether to take any action, including terminating the employee's employment.
2. The primary judge found that, in breach of these requirements, Vision: (a) provided Mr Elisha with a document outlining only those allegations against him that concerned alleged misconduct while staying at a hotel for the purpose of his employment ("the hotel incident"); (b) arranged a meeting between Mr Elisha and management representatives; and (c) gave Mr Elisha a purported opportunity to respond to the allegations concerning the hotel incident, but in so doing failed to appreciate that if, as was the case, the management representatives were aware of other allegations of similar misconduct against Mr Elisha and intended to use that knowledge to evaluate both the fact of the occurrence of the alleged misconduct at the hotel and the seriousness of that misconduct, then Mr Elisha was not being given: (i) a real opportunity to respond to the allegations of misconduct of which he was aware (relating to the hotel incident); or (ii) any opportunity to respond to the other allegations of which he was unaware (of similar misconduct). In further breach of its contractual obligations, Vision then unlawfully terminated Mr Elisha's employment without Mr Elisha being given a real opportunity to respond to the allegations of misconduct of which he was aware (relating to the hotel incident) or any opportunity to respond to the other allegations of which he was unaware (of similar misconduct).
3. The primary judge characterised this process as "unfair, unjust and wholly unreasonable"[141] and "nothing short of a sham and a disgrace",[142] concluding that it was "staggering" that Vision's management representatives had not realised the unfairness of the process.[143] From the perspective of Vision's management representatives, one of whom had been dealing with what she considered to be Mr Elisha's deteriorating conduct over several years, this may seem unduly harsh. This is particularly so in circumstances where: (a) Mr Elisha's alleged misconduct at the hotel was reported to Vision as resulting in the hotel manager, who was dealing with a complaint by Mr Elisha about unacceptable noise in his hotel room in the middle of the night while wearing her pyjamas, being "clearly distressed", "really humiliated", and having "felt intimidated" by Mr Elisha; (b) Mr Elisha's manager at Vision, who had dealt with what she considered to be Mr Elisha's deteriorating conduct over several years, had also experienced conduct by Mr Elisha that she perceived to be "aggressive" and which had left her feeling "very threatened"; and (c) seemingly unbeknownst to any of Vision's management representatives, in the months leading up to the hotel incident and the termination of Mr Elisha's employment Mr Elisha's doctor recorded that he was experiencing sensitivity to noise, worsening anxiety, irritability, and poor sleep, resulting in Mr Elisha being prescribed an anti-depressant and receiving a referral to a psychologist. That psychologist treated Mr Elisha for anxiety and depression and noted that Mr Elisha's experience of increased noise sensitivity was a factor predisposing him to anxiety, "chronic workplace stress", and "interpersonal difficulties with particular staff members" at Vision.
4. Unduly harsh from the perspective of Vision's management representatives or not, the primary judge was right that Vision's conduct objectively breached its contractual obligations in a way that was seriously unfair to Mr Elisha. This was not a case that a reasonable person would view as involving some mere trivial or procedural non-compliance with Vision's contractually binding disciplinary procedures. A fundamental purpose of those procedures was to ensure that an employee who was to be disciplined, including by termination of employment, was made aware of the misconduct of concern to the employer and given a real opportunity to put their side of the story to the employer before the taking of any disciplinary action. Not only did that not occur, but what occurred involved ensuring that Mr Elisha was not aware of a key reason why his version of events concerning the hotel incident was not accepted (being the earlier events experienced by Mr Elisha's manager and the impressions she had formed of him) or the part that that reason played in the decision to summarily dismiss him. That Mr Elisha's manager was one of Vision's management representatives at the meeting and was part of the decision to summarily dismiss him exposes the impossible position in which the disciplinary process placed Mr Elisha and its serious unfairness to him.
5. The primary judge found (and it is not now subject to challenge) that but for the breaches of its own contractually binding disciplinary procedures Vision would not have summarily terminated Mr Elisha's employment and Mr Elisha most likely would not have developed the serious psychiatric illness he in fact developed.
6. The primary judge also found (and it is not now subject to challenge) that both the manner of the unlawful termination of Mr Elisha's employment (that it was done without Mr Elisha knowing why his account of the hotel incident had not been accepted, being that Vision's management representatives were relying on earlier alleged misconduct by Mr Elisha involving one of those representatives) and the fact of the unlawful termination caused his serious psychiatric illness.
7. The primary judge further accepted evidence (that is not now subject to challenge) that the serious psychiatric illness Mr Elisha developed, principally major depressive disorder, was "chronic", without "sustained remission", and complicated by a "poor response" to anti-depressant therapy (Mr Elisha being "unfortunately in a small percentage of individuals that are resistant to conventional treatment", so that a possible next step would be electro‑convulsive therapy). As a result, Mr Elisha's illness left him "totally impaired in his social functioning" and unable to work, his prognosis being "realistically not good".

1. The headnote to the decision in Addis is expressed at a level of generality that the reasons for the decision do not support. The headnote says:[144]

"Where a servant is wrongfully dismissed from his employment the damages for the dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment".

1. The contract at issue in Addis involved payment by way of salary and on commission and was terminable on six months' notice.[145] The employer gave the employee six months' notice but, at the same time, effectively replaced the employee in his position as manager and took steps to prevent him from discharging his functions as manager,[146] the effect of which was to deprive him of his salary and the opportunity to earn commissions.[147] The jury awarded the employee damages for contractual breach for lost salary and commissions, as well as damages in respect of "the harsh and humiliating way in which he was dismissed".[148] Lord Loreburn LC said that damages were properly awarded for lost salary and commissions but not for the "manner of dismissal", on the basis that "[i]f there be a dismissal without notice the employer must pay an indemnity; but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment".[149] Lord James and Lord Atkinson agreed,[150] the latter observing the general principle that contractual damages are compensatory and not punitive so that, subject to confined exceptions, damages are not increased and exemplary damages are not payable by reason of the breach also involving other misconduct.[151] Lord Gorell also agreed with Lord Loreburn LC,[152] relevantly observing that the "general rule is clear that damages in contract must be such as flow naturally from the breach, or such as may be supposed to have been in the contemplation of the parties as the result of the breach" and concluding that neither limb was satisfied in respect of "damages for the manner in which" the employee was peremptorily dismissed.[153] Lord Shaw, who also agreed with Lord Loreburn LC,[154] acknowledged that "wrongful dismissal may be effected in circumstances and accompanied by words and acts importing an obloquy and causing an injury, any reasonable estimate of which in money would far outreach the balance of emolument due under the contract",[155] but considered that contractual damages for such a wrong would exceed the limits of the contract.[156] Lord Collins (in dissent) conceived of the case as raising the question whether "exemplary or vindictive damages" could be awarded for wrongful dismissal,[157] concluding that such damages could be awarded.[158]
2. It may be taken that the contract of employment in Addis contained no provision governing the manner of dismissal other than that providing for termination on six months' notice. This would reflect the historical orthodoxy that:[159]

"At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."

1. Language evolves, and common law orthodoxy is subject to statutory intervention and new perspectives. In the United Kingdom, the common law developed to include a term implied into contracts of employment that "the employer and employee may not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them".[160] This implied term, however, does not extend to the manner of dismissal of the employee (reflecting, in part, the reasoning in Addis and otherwise a legislative intention that the statutory provisions for unfair dismissal embody the available remedies).[161] In the United Kingdom, the resulting so‑called "Johnson exclusion area" has been held not to apply to any accrued cause of action, for breach of contract or otherwise, that has arisen before the fact of dismissal.[162] Further, although initially conceptualised as a limit on the extent of the implied term of mutual trust and confidence, the "Johnson exclusion area" has been held to apply to express contractual terms regulating disciplinary procedures against employees.[163] The consequence is that, "unless [the parties] otherwise expressly agree", a failure to comply with contractually binding disciplinary procedures will not give rise to a common law claim for damages.[164]
2. The resulting doctrines in the United Kingdom have yielded cases such as Yapp v Foreign and Commonwealth Office.[165] Mr Yapp was appointed British High Commissioner in Belize. He was subsequently withdrawn from the post by the Foreign and Commonwealth Office ("the FCO") with immediate effect and suspended pending investigation of allegations of misconduct.[166] While suspended he developed depression. As his employment was not terminated,[167] the "Johnson exclusion area" was irrelevant.[168] In the High Court, Cranston J held that the withdrawal of Mr Yapp from his post constituted a breach of the FCO's common law duty of care,[169] and a breach of contract because the withdrawal decision involved a failure to fulfill "the obligation of fair treatment which the FCO owed him under his contract of employment",[170] with the result that Mr Yapp was entitled to damages for the depressive illness he developed and its consequences.[171] The Court of Appeal allowed an appeal by the FCO on the issue of remoteness of Mr Yapp's claim for psychiatric injury,[172] finding that Cranston J was "wrong to find that it was reasonably foreseeable that the FCO's conduct in withdrawing [Mr Yapp] from his post ... might lead him to develop psychiatric illness".[173]
3. The analysis of Underhill LJ in the Court of Appeal (with whom Davis LJ and Patten LJ agreed[174]) reflects the evolution of the law in the United Kingdom concerning claims for psychiatric injury caused by a failure to afford fair treatment to an employee as part of, in effect, a disciplinary process. Specifically, where a claim is founded on a breach of an employer's common law duty of care to take reasonable care of an employee's safety (such a duty generally arising in tort but also, in some cases, contract[175]), such injury "will not usually be foreseeable unless there were indications, of which the employer was or should have been aware, of some particular problem or vulnerability on the part of the employee",[176] albeit that Underhill LJ subjected that general principle to the caveat that "[e]ach case depends on its own facts, and in principle the employer's conduct in a particular case might be so devastating that it was foreseeable that even a person of ordinary robustness might develop a depressive illness as a result".[177] This caveat accords with the position in the United Kingdom that where a claim for such injury is purely contractual, in that it is founded only on a breach of an implied term of mutual trust and confidence or any other express term, the usual contractual test for remoteness will apply,[178] being whether the loss "at the time of contracting ... was within [the parties'] reasonable contemplation as a not unlikely result of that breach".[179] The Court of Appeal ultimately concluded in Mr Yapp's case that the losses attributable to his psychiatric injury failed the test of remoteness in tort - on account of the absence "of any sign of special vulnerability"[180] - from which it followed that those losses were "also too remote to be recoverable in [a] claim for breach of contract".[181]
4. The law in Australia has taken a different course. In Commonwealth Bank of Australia v Barker,[182] this Court rejected the implication of a term of mutual trust and confidence into contracts of employment. The logic of the "Johnson exclusion area" also has not commended itself in Australia, involving as it does remedies dependent on the fact of dismissal or non‑dismissal and not on the fact of contractual breach and its consequences. Moreover, the test for the recovery of contractual damages in Australia for breach of contract causing psychiatric injury and illness is not aligned with the test for recovery of damages for the tortious infliction of such injury and illness.[183]
5. The different course of the development of the law in Australia applies also to the relevance of Addis. In Baltic Shipping Co v Dillon, Mason CJ characterised the reasoning in Addis as expressing only the "general rule that damages for anxiety, disappointment and distress are not recoverable in actions for breach of contract", which, in any event, was subject to exceptions.[184] Mason CJ explained that the general rule was said to arise from the fact that "damages for breach of contract are in essence compensatory and ... are confined to the award of that sum of money which will put the injured party in the financial position the party would have been in had the breach of contract not taken place. On that approach, anxiety and injured feelings do not, generally speaking, form part of the plaintiff's compensable loss which flows from a breach of contract."[185] In identifying the exceptions to the general rule enabling the recovery of damages for "injured feelings", Mason CJ said "it is beyond question that a plaintiff can recover damages for pain and suffering, including mental suffering and anxiety, where the defendant's breach of contract causes physical injury to the plaintiff", noting in the related footnote (fn 95) that the "class of physical injury for which damages are available includes nervous shock".[186] In respect of that last proposition, Mason CJ referred to Mount Isa Mines Ltd v Pusey.[187] In that case, an employee had developed "a profound psychiatric disability broadly comprehended in the term 'schizophrenia'"[188] some weeks after coming to the aid of other employees who had been badly burned by a short‑circuiting switchboard.[189] Barwick CJ, for example, said that it was not and could not be contended that the "shock" of seeing the immediate aftermath of the accident, if it caused the schizophrenia, "was not an injury for which damages could be given".[190] Similarly, Windeyer J stated that while mere "[s]orrow does not sound in damages", it had become recognised that "nervous shock" or "severe emotional distress can be the starting point of a lasting disorder of mind or body" for which damages may be recoverable.[191]
6. In other words, it is not the law in Australia that the decision in Addis precludes an employee from recovering damages for "injured feelings" if, by "injured feelings", what is meant is an "injury" of the type formerly described as "nervous shock" and its sequelae of ongoing psychiatric illness. The questions in Australia remain those of breach, causation of harm, and remoteness of damage in the contractual context. The Court of Appeal erred in concluding to the contrary.[192]

1. The rule in Hadley v Baxendale[193] continues to govern questions of remoteness of damage for breach of contract. Leaving aside knowledge by the parties of special circumstances, the first limb of the rule permits recovery for damage for breach of contract as "may fairly and reasonably be considered [as] arising naturally, ie, according to the usual course of things, from such breach of contract itself".[194] The second limb of the rule permits recovery for damage "as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it".[195] As the Court of Appeal noted in this case, it was not suggested that Mr Elisha's psychiatric illness would arise "according to the usual course of things",[196] the relevant issue being what would have been within the "contemplation of the parties" at the time at which the contract was entered. The degree of "contemplation of both parties" of the kind of damage satisfying the second limb has been expressed in a variety of terms,[197] but one description that has not found favour in Australia or (ultimately) in the United Kingdom is that the kind of damage caused merely be "on the cards".[198] The formula that best expresses the requisite degree of contemplation is that, at the time of entry into the contract, the parties should reasonably have contemplated as a "serious possibility" that breach of the relevant term could result in the kind of damage claimed.[199] Importantly, as McHugh JA said in Alexander v Cambridge Credit Corporation Ltd:[200]

"An important matter in ascertaining whether the loss or damage is too remote is the extent to which the parties may be taken to have contemplated the events giving rise to that loss or damage. The parties need not contemplate the degree or extent of the loss or damage suffered ... Nor need they contemplate the precise details of the events giving rise to the loss. It is sufficient that they contemplate the kind or type of loss or damage suffered.

The most difficult question in determining the relevant kind of damage concerns the level of classification of the damage which the parties must have contemplated. Clearly the level must not be so high that the parties are required to contemplate the very loss in question or the precise manner of its occurrence. Nor must it be so low that any loss or damage, no matter how unusual in nature or occurrence, would fall within the classification."

1. This observation about the test for remoteness of damage requires consideration of the relationship between the breach and the kind of loss or damage caused. What is required at the time of entry into the contract is that the parties should reasonably have contemplated as a serious possibility that the kind of breach that, in the event, occurred could cause the kind of injury, harm or loss that, in the event, occurred.
2. The relationship between the concepts of the kind of breach that occurred and the kind of resulting injury, harm or loss to the employee being in the reasonable contemplation of the parties as a serious possibility at the time of entry into the contract is critical. Assume, for example, a hypothetical case in which Vision considered that certain alleged employee misconduct was sufficiently serious to make informal counselling inappropriate. Assume Vision arranged a meeting under its disciplinary procedures but, instead of "up to two management representatives" attending the meeting in accordance with its disciplinary procedures, three management representatives attended the meeting. Whether or not the meeting results in summary dismissal of the employee, it would be impossible to conclude that, at the time of entry into the contract, the parties should reasonably have contemplated as a serious possibility that this kind of procedural breach of Vision's disciplinary procedures (in having three rather than two management representatives attend the meeting) could cause harm in the form of psychiatric illness. In a case in the United Kingdom, in part involving a claim of this kind, Moore‑Bick LJ (with whom Hallett LJ and Carnwath LJ agreed[201]) concluded that the parties to the employment contract in that case "would have been astonished" if, at the time of entry into the contract, it was suggested to them that the employee might suffer psychiatric illness because a disciplinary panel comprised two rather than three members,[202] three members being the required number under the disciplinary procedures in question.[203]
3. No doubt, absent some special circumstances known to the parties at the time of entering the contract, the same conclusion would apply to a similarly minor kind of breach of the contract of employment between Vision and Mr Elisha insofar as it incorporates aspects of Vision's disciplinary procedures. But that is not this case. In this case, the primary judge found that Vision's management representatives: (a) purported to notify Mr Elisha in writing of the allegations of an unacceptable type of conduct on his part, and (b) purported to give him an opportunity to respond to those notified allegations in purported compliance with its disciplinary procedures when, (c) in fact, Vision had not notified him and given to him an opportunity to respond to other allegations of earlier unacceptable conduct of the same type, in circumstances where (d) Vision proposed to and did use those other allegations to reject Mr Elisha's version of events regarding, and explanation for, the notified allegations; and (e) summarily and unlawfully terminated Mr Elisha's employment on this improper basis.
4. This highlights that the relevant question in the present case is not whether, at the time they entered the contract, Vision and Mr Elisha should reasonably have contemplated as a serious possibility that Vision acting in breach of any contractual term of its disciplinary procedures in any manner could result in Mr Elisha suffering any psychiatric illness. The relevant question is whether, at the time they entered the contract, Vision and Mr Elisha should reasonably have contemplated as a serious possibility that Vision acting in serious breach of its disciplinary procedures in a way that worked a serious injustice to Mr Elisha could result in Mr Elisha developing a serious psychiatric illness.
5. This highlights also that the limit that the concept of remoteness of damage imposes on an employer's liability for breach of a contractual term (recalling that contractual causation requires only that the breach be a material cause of the loss, not the sole cause of the loss[204]) results from the relationship between the kind of event giving rise to the breach and the kind of resulting injury, harm or loss to the employee. Irrespective of whether the actions of Vision's management representatives appeared to them to be reasonable and fair at the time given the information they had about the hotel incident, their actions, objectively characterised, involved a serious breach of Vision's contractually binding disciplinary procedures. The actions fundamentally undermined the very purpose of those procedures - to enable an employee's side of the story to be heard and taken into consideration. The primary judge conveyed the reality of the resulting unfairness and its impacts on Mr Elisha in recording that Vision's management representatives: entered the meeting believing Mr Elisha had demonstrated a "pattern of aggression" based on the earlier allegations of his manager that were not notified to Mr Elisha before the meeting; and wrongly believed that they could use that belief of a "pattern of aggression", without having put the allegations on which that belief was based to Mr Elisha, to conclude that his version of the hotel incident was not to be believed. The management representatives then informed Mr Elisha that he was being summarily dismissed because of the hotel incident when that was but one part of the real reason for his summary dismissal. Mr Elisha, for his part, was left "shocked" and "confused" as to how what he considered to be "gossip" from the hotelier could have led to his summary dismissal, his evidence conveying, in the words of the primary judge, "acute bewilderment" at the "unfathomable nature of what had occurred".
6. The objective character of the actions involved in Vision's breach of its disciplinary procedures is such that, at the time of entry into the contract, the parties should reasonably have contemplated as a serious possibility that a serious breach of Vision's disciplinary procedures, involving serious unfairness to an employee, could cause the employee to develop a serious psychiatric illness. No doubt "injury to feelings is a common‑day experience and is something distinct from [psychiatric] illness".[205] Equally, the law of remoteness should recognise that there are differences in type and not merely degree between psychiatric illnesses. To do otherwise, as McHugh JA cautioned against in Alexander v Cambridge Credit Corporation Ltd, would pitch the type of damage which the parties should have contemplated at too "low" a level of classification.[206] For example, the relevant type of damage in this case should be characterised as a "serious psychiatric illness" because that is the type of illness from which Mr Elisha in fact suffers and which was found by the primary judge to have been caused by the breach. Once it is accepted, as it must be, that the parties in this case should reasonably have contemplated as a serious possibility serious psychiatric illness resulting from the kind of breach of Vision's disciplinary procedures that occurred in this case, the test for remoteness is satisfied. That Mr Elisha's major depressive disorder has proved resistant to treatment cannot transform damage of a type that is not too remote into damage of a different type when in fact the difference is merely one of degree (for example, there is no difference in type between a "serious psychiatric illness" and a "refractory serious psychiatric illness", as the latter description reflects only the susceptibility of the psychiatric illness in the particular individual to effective treatment, not the type of the psychiatric illness). Doing otherwise would, as McHugh JA also cautioned against, pitch the "classification of the damage" at too "high" a level.[207]
7. There are many different forms of psychiatric illnesses, with different diagnostic criteria. The focus of the law of remoteness on the contemplation of the "type" of injury rather than the specific injury caused by the breach reflects a common‑sense approach to the limited scope of human imagination and the unlimited scope of human experience. In the context of psychiatric illness caused by a breach of contract, it is one thing to accept that there is no difference in type between a serious psychiatric illness and a refractory serious psychiatric illness. It may be another, however, to accept no difference in type between, for example, contemplation of any diagnosable psychiatric illness, no matter how mild in nature (eg, a mild and transient anxiety disorder), and of a serious psychiatric illness (eg, major depressive disorder, schizophrenia). That parties to a contract should reasonably have contemplated the former as a serious possibility consequent on a kind of contractual breach does not, for the purposes of the test of remoteness, necessarily bring the latter within the parties' contemplation. The observation of Wilcox J in Nikolich v Goldman Sachs J B Were Services Pty Ltd, that it "may be unusual for disturbance of mind to lead to a psychological condition as severe [or resistant to treatment] as that suffered ... However, that is a statement about the extent of the injury, not its type",[208] should not be understood as proposing that reasonable contemplation of a serious possibility of any psychiatric illness resulting from a contractual breach necessarily encompasses reasonable contemplation of every resulting psychiatric illness.
8. Further, that Mr Elisha in fact (and unbeknownst to Vision) suffered from a less serious psychiatric illness for which he was treated with anti-depressant medication before his summary dismissal is also immaterial on the findings of the primary judge (that the manner and fact of the summary dismissal, which was unlawful and would not have occurred but for the breach of the employment contract, caused the serious psychiatric illness that Mr Elisha subsequently developed).
9. Rowe v McCartney,[209] a negligence case - where the test of remoteness is the less stringent standard of reasonable foreseeability - is not comparable. It depended on findings about the cause of the plaintiff's psychiatric illness. The plaintiff had permitted another person (the defendant) to drive her car on the condition that the other person be careful. While driving the car that person had an accident that caused him serious life‑changing injury and the plaintiff, a passenger in the car, less serious injury. The plaintiff also developed a depressive illness.[210] The cause of that depressive illness, however, was not the accident or the physical injuries that the plaintiff had suffered, but feelings of guilt for allowing the other person to drive the car with the result that he suffered a life‑changing injury.[211] In considering the test of remoteness of damage in that factual context, Moffitt P characterised the case as one in which the plaintiff's physical injury and presence in the car were irrelevant to the psychiatric illness she developed, as that illness "could equally have occurred if she had lent her car to the defendant and gone on a holiday".[212] On that basis, Moffitt P considered that the plaintiff's psychiatric illness had to be placed in a more particular category than "physical damage inflicted by the negligent act, psychiatric damage which arises by reason of such physical damage, and psychiatric damage which arises by reason of relevant nervous shock".[213] That more particular form of psychiatric illness was held to not be reasonably foreseeable. Translated to the circumstances of Mr Elisha's psychiatric illness, it would be as if his illness had been caused not by the manner and fact of his unlawful summary dismissal but by anxiety and distress at, say, his parents' reaction to his unlawful summary dismissal.
10. Given that remoteness of damage is a question of fact,[214] it is necessary to identify error in the reasoning of the Court of Appeal, not a mere difference of opinion about that fact. In the context set out above, two errors are apparent. First, the Court of Appeal considered that the evidence of Associate Professor Doherty (a psychiatrist), that it was "extraordinary" and not "reasonable" that Mr Elisha had responded to "a sense of being terminated wrongly" by developing a serious psychiatric illness, supported the conclusion that this form of damage was too remote.[215] On the findings of the primary judge, however, Mr Elisha's employment was in fact unlawfully terminated in circumstances where the wrong done to him meant that, at the time of termination and no doubt until at some time during the proceedings, he also did not and could not understand why he had in fact been terminated.[216] Accordingly, Associate Professor Doherty's opinion was not based on a proper characterisation of the nature of the contractual breach.
11. Second, the Court of Appeal also characterised the breach of the contract of employment as a "failure to put allegations to" Mr Elisha.[217] On that basis, their Honours concluded that the mere "possibility", at the time of entering the contract, that an employee could suffer "some psychological impact" because of that breach was insufficient to satisfy the test of remoteness of damage in contract.[218] This characterisation of the breach is also incomplete and inaccurate. Vision did not merely fail to put allegations of alleged earlier misconduct to Mr Elisha. As described, it purported to comply with its disciplinary procedures by putting allegations to Mr Elisha concerning one incident (the hotel incident) but intended to and did use other allegations of similar conduct at earlier times both to support its rejection of Mr Elisha's version of the hotel incident and to conclude that his employment should be summarily terminated. This process placed Mr Elisha in an impossible position in relation to the disciplinary procedure in respect of his alleged misconduct and involved serious unfairness to him. The degree of seriousness of the breach influences the likelihood of the resulting kind of damage that should reasonably be contemplated. Therefore, the characterisation of Vision's breach as a "failure to put allegations to" Mr Elisha is expressed at an impermissibly high level of generality. It is apparent that a serious breach of disciplinary procedures involving serious unfairness to an employee of a kind that occurred in this case involved a serious possibility of causing the development of a serious psychiatric illness, which should reasonably have been contemplated by the parties at the time they entered the contract.

1. I agree with Gageler CJ, Gordon, Edelman, Gleeson and Beech‑Jones JJ that, given the conclusions about the contractual cause of action, no consideration should be given to the claim in tort.

1. I agree with the orders proposed by Gageler CJ, Gordon, Edelman, Gleeson and Beech‑Jones JJ.

Elisha v Vision Australia Ltd [2022] VSC 754 at [414]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [256]. ↑

Compensation for unfair dismissal is capped at 26 weeks' pay: Fair Work Act 2009 (Cth), s 392(5)-(6). ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [67]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [145]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [182]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [214], [234]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [235]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [241]; see also at [242]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [226], [236]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [238]-[240], [243]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [428]-[430]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [536]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [248]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [250]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [250]-[255]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [567(d)]-[567(e)]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [568]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [529]-[532]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 344-346 [204]-[217]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 340 [190]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 353 [253], 354 [255]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 322-323 [92]-[96]. ↑

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]. ↑

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462 [22]. ↑

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 324 [100]; see also Elisha v Vision Australia Ltd [2022] VSC 754 at [375]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 322 [90]; see also at 326 [110]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 325 [104], quoting Foggo v O'Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87 at 119 [116]. See also Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at 213 [106]; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 at 420 [56]. ↑

Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at 199 [39]. ↑

Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at 223 [152]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [381]; see also Vision Australia Ltd v Elisha (2023) 328 IR 299 at 338 [176]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [420]; Vision Australia Ltd v Elisha (2023) 328 IR 299 at 325-326 [109]-[110]. ↑

Wenham v Ella (1972) 127 CLR 454 at 466; Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 368. ↑

See Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 at 374 and Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 37, both citing Addis v Gramophone Company Ltd [1909] AC 488. ↑

Young v Chief Executive Officer (Housing) (2023) 278 CLR 208 at 235 [69], quoting Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 365. ↑

Fidler v Sun Life Assurance Co of Canada [2006] 2 SCR 3 at 16 [36], 20 [46]. See also Young v Chief Executive Officer (Housing) (2023) 278 CLR 208 at 235 [70]. ↑

(1993) 176 CLR 344 at 362, quoting Treitel, The Law of Contract, 8th ed (1991) at 878. ↑

See Vision Australia Ltd v Elisha (2023) 328 IR 299 at 342-346 [197]-[217]. ↑

(1993) 176 CLR 344 at 362 fn 95, 383, 387, 405. ↑

Addis v Gramophone Company Ltd [1909] AC 488 at 491. ↑

Addis v Gramophone Company Ltd [1909] AC 488 at 490-491. ↑

Johnson v Unisys Ltd [2003] 1 AC 518 at 546 [70], referring to Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. ↑

Addis v Gramophone Company Ltd [1909] AC 488 at 489. ↑

Addis v Gramophone Company Ltd [1909] AC 488 at 492. ↑

Addis v Gramophone Company Ltd [1909] AC 488 at 493; see also at 496. ↑

50. United Kingdom, Royal Commission on Trade Unions and Employers' Associations 1965-1968: Report (1968) Cmnd 3623 at 141-154 [520]-[567], 268-269 [1056]-[1060]. ↑

51. Industrial Relations Act 1971 (UK); for the present law see Employment Rights Act 1996 (UK), Pt X. ↑

53. Eastwood v Magnox Electric plc [2005] 1 AC 503 at 524 [12]. ↑

54. Eastwood v Magnox Electric plc [2005] 1 AC 503 at 528 [27], 529 [32]-[33]. ↑

56. Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 217 [118]. ↑

58. Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 at 30 [2], 44-45 [49]-[51], 46-48 [55]-[61], 50 [74], 53 [88], 54 [94], 69-71 [148]-[156]. ↑

59. Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 at 62 [121]-[122]. ↑

61. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 362 fn 95. ↑

62. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 383, 387. ↑

63. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 405. ↑

64. Vision Australia Ltd v Elisha (2023) 328 IR 299 at 338 [180]. ↑

European Bank Ltd v Evans (2010) 240 CLR 432 at 438 [13]; Cessnock City Council v 123 259 932 Pty Ltd (2024) 98 ALJR 719 at 743 [114]; 418 ALR 304 at 332. ↑

South Coast Basalt Pty Ltd v R W Miller and Co Pty Ltd [1981] 1 NSWLR 356 at 364; Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 365-366; Romero v Farstad Shipping (Indian Pacific) Pty Ltd [No 3] [2017] FCAFC 102 at [87]. ↑

Compare H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791 at 801, 804 with 812-813. See also Burrows, Remedies for Torts, Breach of Contract, and Equitable Wrongs, 4th ed (2019) at 94-95. ↑

[1969] 1 AC 350 at 390. For earlier use, see Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 at 540. ↑

Koufos v C Czarnikow Ltd [1969] 1 AC 350 at 390. ↑

Koufos v C Czarnikow Ltd [1969] 1 AC 350 at 399, 415, 425; Wenham v Ella (1972) 127 CLR 454 at 471. See also Cartwright, "Remoteness of Damage in Contract and Tort: A Reconsideration" (1996) 55 Cambridge Law Journal 488 at 494 fn 23, preferring the expression "realistic level of foreseeability" (at 494, 496). ↑

Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] AC 196 at 233, 234; Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 at 540; Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653 at 657-658; Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 365; Attorney General of the Virgin Islands v Global Water Associates Ltd [2021] AC 23 at 35 [29], 36 [32]. ↑

See Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516 at 523; Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653 at 672-673. ↑

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 365. See also Astley v Austrust Ltd (1999) 197 CLR 1 at 27-28 [60]. ↑

78. See Tame v New South Wales (2002) 211 CLR 317 at 382-383 [194]. ↑

79. Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 at [74], quoting Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 at [330]. See especially Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402, 413-414. ↑

Johnson v Unisys Ltd [2003] 1 AC 518 at 539 [35]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [457]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 339-340 [186]-[187], [189]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 339 [185]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [450]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [462]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 340 [188]. ↑

Sullivan v Moody (2001) 207 CLR 562 at 579-580 [50]; Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956 at 967 [37]; 418 ALR 639 at 649. ↑

90. New South Wales v Paige (2002) 60 NSWLR 371 at 376 [22], 391 [97], 395 [131], 400 [154]-[155]. ↑

91. New South Wales v Paige (2002) 60 NSWLR 371 at 387-388 [78]. ↑

94. See, eg, Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). ↑

95. Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] AC 196 at 223; Wenham v Ella (1972) 127 CLR 454 at 466. ↑

98. Reasons of Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ at [62], [63]. ↑

104. Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 366. ↑

107. See Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528; Kollman v Watts [1963] VR 396. ↑

109. No such implication arises from a contract of employment in this country: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169. ↑

110. Johnson v Unisys Ltd [2003] 1 AC 518 at 537. ↑

114. Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 at [330]. ↑

117. Sullivan v Moody (2001) 207 CLR 562 at 580 [53]. ↑

118. Sullivan v Moody (2001) 207 CLR 562 at 576 [42]. ↑

122. New South Wales v Paige (2002) 60 NSWLR 371 at 388 [78]. ↑

123. New South Wales v Paige (2002) 60 NSWLR 371 at 395 [132], 400 [154]-[155]. ↑

125. New South Wales v Paige (2002) 60 NSWLR 371 at 397 [142]. ↑

126. New South Wales v Paige (2002) 60 NSWLR 371 at 397 [143]. ↑

127. New South Wales v Paige (2002) 60 NSWLR 371 at 397 [144], citing Johnson v Unisys Ltd [2003] 1 AC 518 at 543 [54]. ↑

128. New South Wales v Paige (2002) 60 NSWLR 371 at 397 [143]. ↑

129. New South Wales v Paige (2002) 60 NSWLR 371 at 397 [145]. ↑

131. New South Wales v Paige (2002) 60 NSWLR 371 at 398-399 [151]. ↑

132. New South Wales v Paige (2002) 60 NSWLR 371 at 400 [154]. ↑

133. New South Wales v Paige (2002) 60 NSWLR 371 at 400 [155]. ↑

134. Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum at 249 [1564]. ↑

136. Elisha v Vision Australia Ltd [2022] VSC 754 at [42]. ↑

137. Elisha v Vision Australia Ltd [2022] VSC 754 at [43]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [226]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [236]. ↑

Elisha v Vision Australia Ltd [2022] VSC 754 at [226]-[228]. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 488. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 489. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 490, 493. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 493. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 491. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 492, 493. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 494-497. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 502. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 501. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 505. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 502-503. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 503. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 497. ↑

Addis v Gramophone Co Ltd [1909] AC 488 at 500-501. ↑

Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1581; [1971] 2 All ER 1278 at 1282. ↑

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 at 30 [1], citing Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. ↑

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 at 30 [1], citing Johnson v Unisys Ltd [2003] 1 AC 518. ↑

Eastwood v Magnox Electric plc [2005] 1 AC 503 at 528 [27]. ↑

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 at 30 [2], 44-45 [49]-[51], 46-48 [55]-[61], 50 [74], 53 [88], 54 [94], 69-71 [148]-[156]. ↑

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 at 41 [39], 54 [94]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 114 [1]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 112. ↑

Yapp v Foreign and Commonwealth Office [2013] IRLR 616 at 629-630 [96]. ↑

Yapp v Foreign and Commonwealth Office [2013] IRLR 616 at 636 [143]. ↑

Yapp v Foreign and Commonwealth Office [2013] IRLR 616 at 634 [125]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 114 [3]-[4]. See also Yapp v Foreign and Commonwealth Office [2013] IRLR 616. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 132 [148]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 129 [124]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 132 [149], 133 [158]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 118 [42]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 128 [119(1)]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 129 [123]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 129 [119(5)]. ↑

Bristol City Council v Deadman [2007] IRLR 888 at 894 [45], quoting Chitty on Contracts, 29th ed (2004), vol 1 at 1450 [26‑047] and citing Koufos v C Czarnikow Ltd [1969] 1 AC 350. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 130 [127]. ↑

Yapp v Foreign and Commonwealth Office [2015] IRLR 112 at 130 [133]. ↑

183. eg, Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 361, 365-366. ↑

185. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 361 (footnote and emphasis omitted). ↑

186. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 362. See also Toohey J agreeing at 383 and McHugh J to the same effect at 405. ↑

188. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 387. ↑

189. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 409. ↑

190. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 389. See also Windeyer J at 394-395, Walsh J at 409-410. ↑

191. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394. ↑

192. Vision Australia Ltd v Elisha (2023) 328 IR 299 at 346 [216]. ↑

Hadley v Baxendale (1854) 9 Ex 341 at 354 [156 ER 145 at 151]. ↑

Hadley v Baxendale (1854) 9 Ex 341 at 354 [156 ER 145 at 151]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 337 [172]. ↑

eg, Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 365. ↑

Wenham v Ella (1972) 127 CLR 454 at 471; Koufos v C Czarnikow Ltd [1969] 1 AC 350 at 390, 399, 414-415, 425. ↑

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 365. ↑

201. Bristol City Council v Deadman [2007] IRLR 888 at 895 [51], [52]. ↑

202. Bristol City Council v Deadman [2007] IRLR 888 at 894 [46]. ↑

203. Bristol City Council v Deadman [2007] IRLR 888 at 894 [43]. ↑

204. eg, Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 315, 357-358, 360. ↑

205. Essa v Laing Ltd [2004] ICR 746 at 780 [117]. ↑

207. Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 366. ↑

208. Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 at [74], quoting Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 at [330]. ↑

211. Rowe v McCartney [1976] 2 NSWLR 72 at 77, 89-90. ↑

Rowe v McCartney [1976] 2 NSWLR 72 at 75. See also Samuels JA at 89-90. ↑

See, eg, Wenham v Ella (1972) 127 CLR 454 at 466; Rowe v McCartney [1976] 2 NSWLR 72 at 78, citing Richards v Victoria [1969] VR 136 at 146. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 339-340 [185]-[189]. ↑

See, eg, Elisha v Vision Australia Ltd [2022] VSC 754 at [250]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 338 [176], 340 [188]. ↑

Vision Australia Ltd v Elisha (2023) 328 IR 299 at 340 [188]. ↑