Plaintiff v Defendant

2 The trial originally commenced before a jury. However, after I expressed concerns as to how questions of duty and breach in relation to the psychiatric injury claim could be resolved by the jury, the parties agreed that the case should proceed as a cause.

3 I regard Mr Johnson as a totally unreliable and unsatisfactory witness. Nevertheless, there is sufficient contemporaneous corroborative material to establish that he suffered a back injury in the course of his employment, caused by the common law negligence of the TAFE and the TAFE's breach of its occupational health and safety obligations under statute.

4 As for the psychiatric injury claim, I reject the assertion that Mr Johnson's supervisor, Mr Williams, intentionally bullied or harassed Mr Johnson. I accept that Mr Johnson and Mr Williams had a difficult working relationship after Mr Johnson's back injury. However, I am not satisfied that this was due to bullying or harassment by Mr Williams. Rather, it was precipitated by a clash of personalities primarily fuelled by the attitude of Mr Johnson rather than any misconduct on the part of Mr Williams.

5 Notwithstanding this finding, there is one aspect of the psychiatric injury claim in which I think the TAFE breached its duty to Mr Johnson. I am satisfied that by mid-2005 the TAFE should have realised that Mr Johnson was suffering from a depressive condition due to the conflict between the two men and that their difficult relationship required intervention. The failure of the TAFE to take appropriate steps ultimately resulted in Mr Johnson breaking down at a work meeting in March 2006 with a further injury to Mr Johnson's fragile psyche.

6 My reasons for these conclusions and the assessment of the damages recoverable by Mr Johnson now follow.

7 Mr Johnson was born on 24 May 1955. He is single and has lived in Seville for many years. Prior to the period covered by this proceeding, Mr Johnson experienced a number of ongoing health issues, including 'low back pain', hypertension and obesity.[2]

8 Mr Johnson originally trained as a motor mechanic, and from 1985 was a permanent employee of the TAFE as an automotive trades teacher in the Automotive Department.[3] Up until 2000, he taught at the Mitcham campus. From 2000 onwards, he taught at the Box Hill campus.[4]

9 Mr Johnson is, by his own description, 'a bit of a loner'.[5] Although he appears to have got on well with some of his fellow teachers and students at the TAFE. In the course of the trial it emerged that his relationship with other supervisors at the TAFE (apart from Mr Williams) in the years prior to 2003, and particularly in the late 1990s, resulted in considerable animosity and psychological upset on his part, to which I will later return.

10 Until March 2003, Mr Johnson was able to cope both physically and emotionally with his work duties and apparently enjoyed teaching his students. He said of his experience teaching at the TAFE:

That was my life. I really, really enjoyed it. I had excellent working relationships with the students ...[6]

and:

That job was me. I can't really explain it there but I looked forward to going to the classes, I enjoyed imparting knowledge that I had to the students ... it just suited my demeanour, I suppose, that I enjoyed teaching, passing on knowledge, skills [sic].[7]

11 Mr Williams confirmed Mr Johnson's perception. He stated that:

Robbie was of great use to Box Hill and myself. He was one of our most experienced teachers ...[8]

and:

I had the utmost respect for Robbie since I had met him and since we started teaching at Mitcham annex ... he was a bit of a role model for me ... [9]

12 The pleaded case was that the manual handling injury resulted from work between October 1999 and April 2006, when Mr Johnson was required to 'repeatedly place undue strain upon his spine when undertaking heavy manual handling of engine components, transmissions components, assembled transmissions, engines and other items and equipment'.[10]

13 Notwithstanding the pleading, at trial the manual handling claim centred upon Mr Johnson's employment after he was transferred from the Mitcham campus to the Box Hill campus in 2000. Essentially, Mr Johnson argued that when working in the large workshop where practical work was undertaken, he was required to lift and move heavy items from time to time (weighing anywhere from 1-50kg). He had neither mechanical nor physical assistance from other teachers and students.

14 Again, although the claim was pleaded on the basis of his work overall, the case pursued at trial was that there were four specific incidents which Mr Johnson alleged caused an injury to his back or an aggravation of his back condition. Each of these, he claimed, involved a breach of duty both under statute[11] and at common law.

15 The first incident was in April 2002, when Mr Johnson was required to move an engine located on a mobile stand as the engine needed to be locked up overnight (the engine stand incident). Due to the weight of the engine and the allegedly defective rollers on the stand, the stand would not budge, and Mr Johnson injured his spine through his numerous attempts to push it.[12]

16 The second occurred in early March 2003, when Mr Johnson strained his neck while demonstrating to students how to check a crank shaft for bend and twist (the crank shaft incident).[13]

17 The third incident was in late March 2003, when Mr Johnson injured his back while attempting to restrain a heavy manual transmission which was sliding off a student's work bench (the manual transmission incident). On the basis of Mr Johnson's evidence, this incident appears to have caused the most immediate and severe injury.[14]

18 The fourth and final incident occurred on or about 22 June 2004, after Mr Johnson was given a work schedule by Mr Williams which required him to engage in 'heavy' teaching work after a period of lighter duties. This 'heavy' work involved conducting practical lessons in the workshop concerning engine overhaul for two weeks and manual transmission overhaul for one week, followed by a week of automatic transmission overhaul. During the final week, in which Mr Johnson taught automatic transmission overhaul, he re-aggravated his back whilst passing a clutch pack (about 1-1.5kg) to a student (the clutch pack incident).[15]

19 The TAFE argued that there was nothing particularly weighty or strenuous about Mr Johnson's work at the time of the four incidents, or more generally. It said that there were serious issues surrounding Mr Johnson's account of each of these events. The teaching work in the classroom was light, and only on limited occasions did Mr Johnson have to carry out work that could be described as moderate or heavy when doing practical demonstrations. The TAFE contended that it was open to Mr Johnson to seek assistance either from other teachers or from students in the room in the unusual event that he was required to carry out a moderate to heavy lift. This, it said, had been specifically spelt out by Mr Williams once Mr Johnson was placed on light duties. If the TAFE was liable in negligence or for breach of statutory duty, it contended that there was a significant degree of contributory negligence on the part of Mr Johnson in his failure to seek assistance.

20 Mr Johnson's pleaded psychiatric injury claim alleges injury in the course of his employment, but 'particularly' from 2003 when he had returned to work on restricted duties and was 'required to undertake a heavy teaching workload'. According to the statement of claim, during this time Mr Johnson was 'subjected to bullying and harassing behaviour on an ongoing basis by his manager'.[16]

21 At trial, this claim centred on Mr Johnson's relationship with Mr Williams after April 2003, when Mr Johnson returned to work following the manual transmission incident. From this time until Mr Johnson broke down and left the TAFE in March 2006, Mr Johnson alleged a number of discrete events or incidents which (with one exception)[17] constituted bullying and harassment.

22 The first two occurred shortly after Mr Johnson returned to work when he was on light duties. Mr Williams approached Mr Johnson listing three things that he required from his teachers, and Mr Johnson took the comment as a criticism (the three things incident). Mr Johnson also alleged that Mr Williams was critical of Mr Johnson's decision not to attend a TAFE trip to Warrnambool because of his back injury (the Warrnambool trip incident).

23 The third and fourth incidents took place in the first half of 2004. Mr Johnson alleged that he was still on restricted duties during this period. He claimed that Mr Williams told him that his colleagues were sick of hearing him complain about his back (the sick of complaining incident) and Mr Williams returned him to duties involving moderate to heavy work, refusing to talk to Mr Johnson about the change (the change in timetabling incident).

24 The fifth event was a WorkCover meeting with Mr Johnson in December 2004 (the WorkCover meeting). Although Mr Johnson did not rely on the meeting as evidence of being bullied by Mr Williams, he did say that it was an event at the TAFE which caused him psychological upset.

25 The sixth event alleged by Mr Johnson to constitute bullying by Mr Williams relates to the way Mr Williams dealt with Mr Johnson when he failed to attend work one morning in February 2005 (the failure to attend incident). Mr Johnson alleged that Mr Williams was unfair and aggressive.

26 The next incident transpired in the week of Good Friday 2005. Before taking leave, the two men had a chat about Mr Johnson's work tasks. The conversation turned sour and Mr Johnson swore at Mr Williams (the Good Friday incident). Around the same time, Mr Johnson said Mr Williams also snapped at him when he asked a question at an in-house training seminar (the in-house training incident).

27 The ninth and tenth incidents relied on by Mr Johnson to support his psychiatric injury claim did not, in the first instance, directly involve Mr Williams. Each concerned Mr Johnson's interactions with students at the TAFE; in November 2005, when a student accessed Mr Johnson's computer in order to cheat on a test (the student cheating incident) and in February 2006, when the same student refused to comply with a request by Mr Johnson, telling Mr Johnson that 'things happen to people who threaten me' (the things happen incident). Both incidents were said to have caused Mr Johnson great distress. In fact, Mr Johnson was so affected by the things happen incident that he was sent home by a representative from Human Resources, Ms Olga Hunt, and was off work for three weeks.

28 The final incident occurred in March 2006 in the week he had returned to work after being off due to the things happen incident. He attended an in-service meeting where Mr Williams singled him out in front of his colleagues and told him he was not performing (the March in-service meeting incident).

29 Mr Johnson also said that throughout the period from 2003 to 2006, he was subjected to ongoing jibes by Mr Williams directed towards his health or work performance.

30 As I followed the argument of his counsel, the TAFE was said to be liable to Mr Johnson in two ways:

(a) vicariously, as a result of Mr Williams' behaviour from 2003 to 2006, which was said to amount to bullying and harassment; and/or

(b) systemically, for failing to intervene in the conflict between the two men, which resulted in Mr Johnson then leaving work permanently in March 2006.

31 The manner in which the case was put by Mr Johnson's counsel altered during the course of the trial. Whilst the statement of claim alleged solely 'bullying and harassing behaviour', when final submissions were filed, it extended to 'bullying, harassment and conflict' with Mr Williams. The addendum is revealing and, I think, clarifies what the case was truly about.

32 The TAFE contended that there was nothing extraordinary or unusual about the working relationship between the two men. There was no bullying or harassment by Mr Williams. Mr Williams' activities were directed to trying to extract the best from his team. There was no suggestion that Mr Williams had ever used inappropriate language. Indeed, the only occasion upon which inappropriate language was used between the two men was by Mr Johnson to Mr Williams, which resulted in Mr Williams reporting Mr Johnson to senior management.

33 In essence, the TAFE's case was that there were likely to be problems in any working relationship, but that the level of tension between Mr Williams and Mr Johnson was of insufficient magnitude to give rise to an unreasonable lack of care on the part of Mr Williams towards Mr Johnson.

34 Finally, I should mention an alternative claim for breach of contract made in Mr Johnson's statement of claim. In effect, this claim was simply a replication of the claim in negligence and was inadequately pleaded. No reliance was placed on it at trial.

35 In addition to Mr Johnson's viva voce evidence, the following witnesses gave evidence on his behalf:

• Mr Lanny Pincott, a fellow teacher and former friend of Mr Johnson;

• Dr Bill Verhoef, Mr Johnson's treating general practitioner;[18] and

• Dr Tony Pastore, Mr Johnson's treating clinical psychologist from 2008.[19]

36 In addition to reports of Dr Verhoef and Dr Pastore, a large number of medical reports prepared by treating practitioners, occupational physicians and surgeons, and medico-legal specialists were tendered. These were the reports of:

37 The TAFE called viva voce evidence from the following witnesses:

• Mr Wayne Shevlin, the Human Resources Manager at the TAFE;

• Ms Olga Hunt, the Workplace Support Manager of the TAFE;

• Mr Craig Brittle, a sessional teacher and acting manager of the Automotive Department of the TAFE.

38 A number of medical reports prepared by medico-legal specialists were also tendered by the TAFE. These were reports of:

The credibility of the witnesses as to liability

39 To a large extent, Mr Johnson's case turned upon acceptance of Mr Johnson's account of his work activities and his interactions with Mr Williams. For reasons I will now explain, Mr Johnson presented as a very poor historian and ultimately it was impossible to give any real credence to his account of events at the TAFE. There were major failings in Mr Johnson's accuracy in recounting relevant events.

40 First, I have no doubt that Mr Johnson, both in his everyday life and in the preparation for trial has, focused intensely on the issues that are the subject of this claim, and in particular his working relationship with Mr Williams. In the words of his treating doctor, Dr Verhoef, he tends to 'ruminate' on issues.[34] In my opinion, Mr Johnson magnified not only what occurred but also the consequences of that event to his wellbeing.

41 Indeed, it was clear that after his return to work on light duties in mid-2003, Mr Johnson was preoccupied with his rights under WorkCover and determined to blame management for any recurrence of his injury.[35]

42 This preoccupation has been noted by two of the consultant psychiatrists. In his report of March 2010, Dr Simon Kennedy said that '[Mr Johnson] is focused on WorkCover issues and has a negative perception of the workplace.'[36] In December 2012, Dr Nigel Strauss stated that 'this man remains preoccupied with what happened to him at Box Hill TAFE'.[37] In his report of 2014, Dr Strauss said:

Today this man emphasised at the beginning of the assessment that he is very worried about his upcoming compensation claim. He said he spends a good deal of time researching and writing notes.

...

He spends his time preparing for his court case. He said his memory is good but his concentration fluctuates depending upon his level of pain.[38]

43 Second was his apparent exaggeration of particular events which I conclude was intended to bolster his case. An example is his allegation that he suffered excruciating back pain when moving the manual transmission in late March 2003 (immediately following the manual transmission incident). He described the actual event and the onset of pain in considerable detail during the trial.[39] He said that as a result of this incident he experienced 'instant agonising pain in [his] lower back and legs',[40] which persisted for a considerable period of time.[41] No evidence was called from the Lilydale Super Clinic which he attended immediately after this event.

44 Given the nature of that event (as he described it) and its sequelae, it could be expected that the symptoms (if not the precipitating event) would have been reported to his treating doctor at the first available opportunity. In fact, on 10 April 2003 when Dr Verhoef first saw Mr Johnson after the incident, he took no history whatsoever relating to a sudden onset of extreme and continuous pain arising out of a work activity.

45 Another example is Mr Johnson's evidence as to his duties upon his return to the TAFE on light duties in mid-2003. He stated that he had become 'tense, frightened,' and was required to stand on concrete floors for eight hours at a time[42] - a notion which was swiftly dismissed at trial.[43] The proposition was arrant nonsense. He worked four days a week on site at the TAFE. He had only one teaching day per week of eight hours, of which a sizeable portion was devoted to classroom teaching with a number of breaks.[44]

46 Third was Mr Johnson's tendency to diminish matters that might affect the acceptance of his account of his interaction with Mr Williams and the asserted devastating effects of that relationship. In the course of his evidence-in-chief, Mr Johnson passingly referred to an episode of stress in 1997 and 1998 associated with his employment at the TAFE.[45] He did so on the basis that these were transient episodes involving minor disagreements with a supervisor, which resolved quickly. He said that it was 'insignificant' compared to the 'enjoyment that [he] got from working with the students.'[46]

47 However, when Mr Brittle (a fellow teacher) was called by the TAFE, he produced a questionnaire completed by Mr Johnson in 2002 which painted a completely different and toxic picture of his relationship with his supervisors in the past.[47] The questionnaire disclosed that Mr Johnson had previously alleged that two of his managers at the TAFE (separately and at different times) had bullied and harassed him.[48] One, a Mr Herron, was the subject of a formal complaint.[49]

48 The questionnaire (which Mr Brittle arranged for Mr Johnson to complete for the purpose of Mr Brittle's Master's thesis) required Mr Johnson to describe his ongoing confrontation with his supervisor. At that time, Mr Johnson considered that he had been singled out by the supervisor and accused of not carrying out his role within the team.[50] He felt that his work practices were criticised and that his superior had a regimented and authoritarian style in communication. Mr Johnson wrote that he felt that he was bullied because he:

Never got on with this individual even at teachers college, because of his attitude, manner superiority complex to others, SNOB

49 The questionnaire records a number of Mr Johnson's statements concerning this alleged bullying episode. Mr Johnson denied making several of the admissions contained in Mr Brittle's questionnaire (or, alternatively, said that he had incorrectly responded in the present tense), but accepted that he had completed the questionnaire and answered questions posed by Mr Brittle.[52] There is no reason to disbelieve Mr Brittle's account of the answers given by Mr Johnson.

50 Fourth, Mr Johnson's presentation in court was that of a mild-mannered and meek man constantly overawed by his superiors. However, his out of court behaviour demonstrates that he was perfectly capable of looking after his own interests. For instance, on 7 December 2004, he sent the following email to Mr Shevlin, the Human Resources Manager:

Wayne,

I am extremely troubled over this confusing meeting conducted 6/12/04 in the HR conference room bld 3. and the implication arising from it. Our phone discussion led me to believe that the meeting was only a follow up on my progress to date, not to be told bluntly, that I'm permanently incapacitated.

Apparently I'm being offered a new "JOB OFFER"??? WITH SEVERE WORK RESTRICTIONS and advised to follow to the letter these restrictions, the work program to be written by an individual who didn't seem to understand the TAFE award/conditions or my current workplace restrictions, with input from Rob Williams and as an after thought me, by the way who is the "Gabby" person and what is her role in this, who does she represent, she only introduced herself then run the meeting.

I am extremely unhappy that you or a HR representative, FAILED TO ATTEND THIS MEETING!

I request a meeting with you ASP. to discuss these concerns. [sic][53]

51 Mr Johnson's presentation in court was also inconsistent with his behaviour on 22 March 2005, when Mr Johnson verbally attacked Mr Williams, resulting in Mr Williams reporting Mr Johnson to their superior.[54] Even more surprisingly, this is one of the incidents which Mr Johnson says constituted bullying on the part of Mr Williams.

52 Subsequently, when Mr Johnson was being pressed by the TAFE for a response to allegations that he was threatening in his behaviour towards Mr Williams on 22 March 2005, he could not find the time to attend an arranged meeting.[55]

53 Ms Olga Hunt, the Workplace Support Manager at the TAFE, had a number of dealings with Mr Johnson in relation to Mr Johnson's work-related issues and remembered him, when upset, as 'bordering on aggression'.[56]

54 Finally, Mr Johnson's description of constant bullying and harassment does not ring true with his behaviour at the time. Whilst I accept that during 2005 he mentioned bullying at work to his general practitioner, it is singular that Mr Johnson made no formal complaint about Mr Williams' behaviour to the TAFE when he was perfectly capable of voicing his opinion when he felt aggrieved (as he had done in the past).[57]

55 I put the evidence of Mr Pincott as to the alleged bullying and harassment by Mr Williams of Mr Johnson to one side. As a former friend of Mr Johnson and a disgruntled (former) employee of the TAFE, the evidence disclosed that Mr Pincott has a massive grudge against Mr Williams, and was patently biased in his evidence, notwithstanding his protestations to the contrary.[58]

56 I thought Mr Streader endeavoured to give frank evidence, with one significant caveat: his recollection as to the interaction between Mr Williams and Mr Johnson seemed to improve in the course of giving his evidence. Two of the critical incidents relied upon by Mr Johnson, and referred to by Mr Streader in oral evidence, were not mentioned in his original affidavit filed in October 2011 in support of Mr Johnson's serious injury application (in that affidavit, Mr Streader could 'specifically recall' only one example of 'bullying behaviour' at the TAFE, notwithstanding he had read two of Mr Johnson's affidavits). Indeed, one recollection of a specific incident came to light during Mr Streader's re-examination.[59]

57 Overall, I have no confidence in his recent revelations of specific events relating to the alleged bullying and harassment of Mr Johnson nearly ten years ago, but I accept his account of a meeting which probably occurred in March 2006 (and is mentioned in the affidavit), as well as his description of work activities carried out in the Automotive Department.

58 Mr Williams, I think, generally endeavoured to give an honest account of his dealings with Mr Johnson. Certainly, I preferred his evidence to that of Mr Johnson. There is contemporaneous documentation that supports a number of aspects of Mr Williams' evidence (particularly after the heated discussion with Mr Johnson in March 2005). However, he had a surprisingly poor recollection of the events surrounding Mr Johnson's return to light work duties and his ultimate cessation of work. In particular, Mr Williams' lack of recollection of events involving Mr Johnson in February and March 2006 was puzzling, to the point where I prefer the evidence of Mr Johnson, corroborated by Mr Streader, as to the March in-service meeting in 2006.[60]

59 Mr Brittle was the most impressive of the fellow TAFE teachers called at the trial. As far as I could tell, he had no axe to grind and had worked closely with Mr Johnson. Ultimately, and for reasons I shall explain in due course, I am satisfied that his account of the relationship between Mr Johnson and Mr Williams fits more comfortably with the contemporaneous material and my view of Mr Johnson's evidence. I accept his account of events at the TAFE.

60 Both Mr Shevlin and Ms Hunt were members of the Human Resources Department of the TAFE. Mr Shevlin was the Manager of the Human Resources Department throughout the duration of Mr Johnson's employment. He had little to do with Mr Johnson and his evidence was passingly relevant. However, the evidence of Ms Hunt (who was the Workplace Support Manager from mid-2005) was particularly relevant to the events surrounding Mr Johnson's last year at the TAFE. Both were credible witnesses, and I accept their evidence unreservedly.

The management structure at the Box Hill campus

61 Mr Johnson worked in the Automotive Department along with approximately 12 other teachers. In about 2001, Mr Williams, then a teacher in the Automotive Department, was promoted to the role of Program Coordinator. From that time, he effectively supervised all teachers in the Automotive Department (including Mr Johnson) and was responsible for timetabling.[61] He remained in that role throughout Mr Johnson's employment at the TAFE. Mr Williams in turn reported to Mr Kevin McCollum, the Centre Manager in charge of the Automotive and Engineering Department.[62]

62 The Human Resources Department played an important role in the management of Mr Johnson's work injuries, his compensation claim and his return to work program. It was managed by Mr Shevlin until August 2009 and he was assisted by Ms Hunt. Ms Hunt was employed as a Workplace Support Manager to assist in employee disputes, WorkCover claims and general employee relations advice. She had considerable involvement with Mr Johnson after he commenced light duties in March 2003.

63 Although it could be assumed that Mr Johnson's employment was the subject of a written contract, no such document was produced at the trial. Neither Mr Johnson nor the TAFE referred to any piece of legislation or subordinate instrument which might have affected the terms and conditions under which Mr Johnson was employed.

64 Broadly, in his employment as an automotive trades teacher, Mr Johnson's duties involved the training of apprentice motor mechanics. He taught a variety of motor mechanical practices, specialising in engines, automatic transmissions, and manual transmissions.

65 Between 2000 and 2006, Mr Johnson worked a nominal 38 hour week. However, the arrangement reached between the teachers and the TAFE was that teachers would work 20 teaching hours, with a further 10 hours devoted to other administrative teaching tasks (to be undertaken at the TAFE). It was up to Mr Johnson (with his supervisor's approval) to decide whether the remaining eight hours would be spent at work or at home.[63]

66 The 20 hour week was comprised of one eight hour block (normally the last day of the week - depending upon the unit, a Thursday or a Friday) and three four hour blocks. In effect, this enabled Mr Johnson to work a four day week at the Box Hill campus.

67 The 20 contact hours were broken up into theory and practical teaching. The theory component involved classroom work with little or no manual handling. Mr Johnson's estimate was that, prior to his back injury, this took between 30 and 50 per cent of his time on campus.[64] The balance was spent in the workshop, training students as to the operations of various motor vehicle components. This took place in a large workshop area which was divided into sections which dealt with particular units - for instance, an engine area, a transmission area, and so on.

68 I shall describe the work carried out by Mr Johnson in a little more detail shortly, but it suffices to say that on occasion, the various engine parts had to be moved into position before a class could commence. Once the various engine parts were located on stands or benches, there was a degree of manual handling involved in assembling and disassembling or manoeuvring a particular component. For example, parts of an engine (of varying weights) might need to be removed in the course of a lesson.

69 During the relevant period, for both the theoretical and practical components, the class size was about 16-18 students.[65]

70 In October 2003, after Mr Johnson suffered a back injury, Dr David Fish, an occupational physician, visited Mr Johnson's workplace and identified the tasks he performed in his normal duties as follows:

The worker [Mr Johnson] performs demonstrations to apprentices of mechanical overhauls of engines and other motor vehicle parts. The work is varied in accordance with the work of a motor mechanic and includes:

1. Hoist underbody work.
2. Transmission demonstration.
3. Engine demonstration.
4. Battery charging and recharging.
5. Final drive assembly demonstration.
6. Cylinder head regrinds.
7. Wheel change.

I will not comment on each activity in turn, but highlight the problem areas.

1. The underbody work via a hoist requires prominent extension of the neck and is likely to aggravate [t]he worker's cervical spondylosis.
2. Transmission work requires demonstration on a steel top bench with transmissions requiring forceful use of hand tools to remove various components. As the transmissions are unstable on the bench, they must be restrained by either students or the worker while the part is removed.
3. Engines are located on a rotating jig which is lockable and stable.

Most tasks are lightweight in nature and can be carried out by merely demonstration or pointing out the necessary tasks to the apprentices by the worker. It is noted that there are many parts and components stored under benches which when these must be taken out for demonstration purposes requires low bending and heavy lifting. While no immediate solution to this problem is identifiable, it is recommended that an alternative system of storing the necessary demonstration and practice parts for the apprentices be found. In the interim, the worker should be instructed not to lift components from under benches as this is likely to aggravate his back pain.

The major components of the workshop work that he has difficulty with are in order:

It is recommended that he not be returned to transmission work as this will require frequent stabilisation of parts on the bench. Otherwise he is fit to return to a full teaching load in both theory and workshop demonstrations.[66]

71 The practical component of the motor mechanics course was conducted in a large factory-type area, approximately 100m by 35m.[67] The various modules were taught in dedicated parts of the area. Teaching rooms adjoined the work area, and most of the practical work took place using a long work bench on which to demonstrate the particular mechanical part to the students. The surface of each bench top was usually galvanised sheet or stainless steel, which meant that transmissions or other parts could slide quite easily across the bench (particularly when the parts were oily), requiring careful shifting and moving so the parts would not fall off the bench entirely.[68]

72 Mr Streader, whose evidence I accept on this aspect of the case, stated that between 2000 and 2004 there was a reasonable amount of manual handling required of a teacher prior to a class in setting up the workshop area for practical teaching. Teachers were required to lay out each component to be used in the class, including, for example, retrieving cylinder heads (weighing approximately 20kg) from underneath each work bench and placing them on the bench, or putting manual transmissions (weighing approximately 20kg) or automatic transmissions (between 40-50kg) in place on each student's bench.[69] The transmissions were distributed throughout the workshop; some were beneath the work benches, some were on high racks and some were on low racks along the walls.[70]

73 Both Mr Streader and Mr Johnson's evidence was that it was considered a teacher's job to prepare the classroom for a lesson, and that there were no lifting devices at the time which could be used to move equipment. Mr Streader said that:

Sometimes we would ask other teachers if they were available to team lift. Sometimes you just had to do it yourself.[71]

74 Later, in cross-examination, Mr Streader accepted that there was almost always another teacher present in the workshop who could be asked to assist in setting up. However, the ability of the teacher to assist would depend on the set-up requirements of their own class and whether the teachers arrived at the same or a similar time.[72]

75 Mr Streader said that in 2006 (after Mr Johnson had left the TAFE), a 'trolley' type lifting device called a 'Platform Lift' was provided to the workshop, virtually eliminating any heavy lifting.[73] Around the same time, 'saddle brackets' were fitted to the work benches to lock in equipment and prevent anything falling off.[74]

76 Once a class was underway, Mr Streader said the manual handling involved was generally moderate, although heavy handling was occasionally required when demonstrating how to dismantle particularly weighty parts of engines or transmissions.[75]

77 Up until April 2002, Mr Johnson worked in the practical area of the Automotive Department without grievance or injury. There is no record of any complaint to his medical practitioner or the TAFE about back or neck pain occurring at work prior to this date. I repeat what is self-evident from the evidence - this teaching job was not one that involved constant heavy, manual handling. On the contrary, the 20 contact hours with students involved a small amount of moderate to heavy manual handling - primarily when setting up a work bench for a class and occasionally during a class.

78 For reasons which I have already mentioned, I have no confidence in Mr Johnson's viva voce account as to the occurrence of his injuries. It is necessary, therefore, to look to the whole of the evidence, including his contemporaneous accounts to medical practitioners, work accident reports, reports obtained from fellow employees and medical practitioners, and other available work/medical records.[76]

79 I shall set out now my reasons and findings as to the allegations concerning the back and neck injuries.

80 Mr Johnson claims that he injured his back on or about 10 April 2002 when trying to move an engine on a stand,[77] which needed to be locked up overnight. Due to the weight of the engine and allegedly defective rollers, the engine stand would not budge. He used considerable force in trying to move the stand (which he estimated weighed at least a couple of hundred kilograms)[78] and stated that he injured his spine through his numerous attempts to push it. He was only able to move the stand half a metre.[79]

81 Mr Johnson described the stand as 'over-engineered', stating that this type of stand could have 'held the Queen Mary up on them.'[80] The caster wheels affixed to the stand did not turn, and the metal fixed wheels did not rotate properly.[81] He was adamant that at the time of moving the stand there were no other students or teachers around to ask to assist him.[82]

82 Following the incident, on 22 April 2002, Mr Johnson signed and submitted an incident report and investigation form which had been completed by Mr Glenn Read (a teacher and OH&S representative employed by the TAFE).[83] In general terms, the description of the event contained in the incident report (which identifies the date of the accident as 10 April 2002) is consistent with the viva voce account provided by Mr Johnson. It also tallies with the account that he gave Dr Verhoef in May 2003 ('jarred back at work last year and has had back pain ever since')[84] and Dr Fish in October 2003 ('pushing an engine machine with resultant back pain').[85]

83 Mr Johnson did not recall having any time off work, and did not seek any medical treatment for his back.[86] He accepted in cross-examination that in light of the measure of pain or discomfort the injury caused him, he did not consider the injury sufficiently important to mention it to his doctor.[87] Having said that, it is clear that this was the precursor to his ongoing problems in 2003 and thereafter.

84 Throughout the rest of 2002, Mr Johnson performed his normal work duties and did not seek medical treatment, despite experiencing increasing stiffness in his back.

85 I am satisfied that Mr Johnson sustained an injury to his back in April 2002, late in the working day, by endeavouring to move an engine stand, which caused a muscular strain to his back. I accept Mr Johnson's account, which tallies with the contemporaneous incident report. The evidence of the doctors who examined Mr Johnson on behalf of the TAFE a year later (Dr Fish[88] and Ms McKenzie[89]) satisfies me that this was the initial cause of his ongoing back problems, which were essentially muscular-ligamentous, superimposed upon an asymptomatic degenerative lumbar spine.

86 In the week after 10 March 2003, whilst demonstrating a procedure for checking crank shafts (approximately 20-30kg in weight),[90] Mr Johnson asserts that he further strained his back.[91] As far as I could understand, his account went as follows: at the time he was holding the crank shaft reasonably far out in front of him and lowering it in front of students, when he felt his back strain.[92] He stated that there were no slings or metal frames available to use as a lifting aid in performing the manoeuvre,[93] although he could have used a piece of rope which was relatively close by,[94] and he accepted that there were 10-15 people in the vicinity he could have asked for help in lifting.[95]

87 Mr Johnson described his back after this incident as 'quite sore,' but he was still able to perform his teaching duties and did not seek any medical assistance, in particular he did not see Dr Verhoef.[96]

88 In cross-examination, the circumstances surrounding the incident became murky. Mr Johnson could not recall whether he filed an incident report after this event, and none was tendered into evidence.[97] Nor were any certificates of capacity issued by Dr Verhoef in respect of the alleged incident. Mr Johnson could not recall whether the episode was reported to the TAFE, and was generally vague about what precisely he was doing at the time and the impact it had on his back condition.

89 There is no contemporaneous medical evidence from Dr Verhoef that this event played any part in the development or aggravation of symptoms.

90 In addition, during 2003, Mr Johnson saw three medico-legal consultants on behalf of the TAFE.[98] He did not tell any of them of this incident. Indeed, to Ms McKenzie, he simply reiterated that his back had been sore in March 2003 prior to the manual transmission incident (discussed below), but did not attribute this to any particular incident prior to that event. So, in summary, there is no contemporaneous or near contemporaneous corroboration of this alleged aggravation of his back pain.

91 I am satisfied that in early March 2003, Mr Johnson's back condition may have been aggravated by returning to a five-day week, consistent with his account to Ms McKenzie. However, there is no independent evidence of either the alleged crank shaft incident occurring or its effects upon him. Given my doubts about Mr Johnson's capacity to give accurate evidence, I am not prepared to accept that any injury occurred in the circumstances described by him. On his own admission, this incident did not incapacitate him from work, and he continued his usual duties and did not seek medical assistance.

The manual transmission incident: late March 2003

92 On 25 March 2003, Mr Johnson sustained another injury to his back. On his account, he was assisting a student in dismantling a manual transmission[99] (which was not held down by any sort of mechanical clamping device), requiring Mr Johnson to restrain it by use of his body weight, when the transmission suddenly started to slip off the bench. Instinctively, Mr Johnson moved to catch the transmission and caught it whilst it was sliding sideways, twisting his back. He experienced instant agonising pain in his lower back and legs,[100] which continued for months.[101]

93 According to Mr Johnson, while clamping devices were available at the Box Hill campus, they were in short supply, being spread across the whole facility. Instead, students would assist each other in holding the transmission while another student worked on it: no clamping devices were used.[102] Vices were much more readily available at the Mitcham campus, as were dedicated work benches which held transmissions in place via a frame.

94 Mr Johnson reported the occurrence and filed an incident report on the same day with the TAFE.[103] He then left work to seek treatment at the Lilydale Super Clinic (his usual general practitioner, Dr Verhoef, was not available).[104] On 10 April 2003, he saw Dr Verhoef, and I shall detail his observations and recorded notes in a moment.

95 Counsel for the TAFE attacked the veracity of Mr Johnson's account of this incident, and urged me to reject it on the basis of its multiple inconsistencies with other in- and out-of-court statements. It is true that there are major inconsistencies in Mr Johnson's viva voce evidence as to the exact cause of his injury and the immediate sequelae. This account needs to be examined in the light of the contemporaneous evidence.

96 First in time is the incident report. As with the engine stand incident report, the part completed by Mr Johnson is confined to the first page,[105] which reads as follows:

What were you doing at the time of the incident?

Working with students disassembling manual transmission.

What was the sequence of events leading to the incident?

Sore and stiff back at the start of the day.

10am reported back pain to program coordinator of pain [sic].

11am stopped work. Left around 11.30am for medical treatment.[106]

97 Mr Johnson offered no explanation as to why the sliding transmission was not mentioned in the incident report, other than that the form was apparently filled out by Mr Read, rather than by himself.[107] This excuse is unconvincing, as the first page, Mr Johnson accepted, was in his own writing.

98 However, the report (from pages 2-4) also contains the following remarks of Mr Read (apparently completed on 13 May 2003), who noted:

Manual handling of heavy components and units, whilst training students in Automotive Studies.[108]

99 The report goes on to describe the 'hazardous condition' that caused the incident as 'a poor work station set up' and 'poor position imposed by inadequate work unit handling equipment'. The source of the injury is identified as 'manual handling', and Mr Read recommends remedial action, including the modification of benches and installation of a vice (consistent with the need to secure a part whilst it is being demonstrated to students).

100 In July 2003, Ellen Alex, an OH&S officer at the TAFE, emailed Mr Read as to whether anything had been done to modify the bench by way of the instalment of a transmission vice. Mr Read replied that he assumed this was a reference to Mr Johnson's accident, and that nothing had been done.[109]

101 There is, however, no specific reference to the manual transmission incident in a 'Back Condition History' document prepared about 3-4 weeks after the injury and attached to Mr Johnson's WorkCover claim of 14 May 2007.[110] In that document, which was prepared and typed by Mr Johnson, he describes the cause of his condition as a 'sore, stiff back' at the start of the day, with an increase in back pain when 'moving, turning, [or] holding the gearboxes while the students did their work' in the manual gearbox repair class. Whilst there is a reference to the handling of a gearbox, there is no mention of the 'agonising' incident caused by attempting to catch the manual transmission sliding off the bench.[111]

102 When Mr Johnson attended Dr Verhoef's rooms two weeks after the incident (and after two separate appointments at the Lilydale Super Clinic on 10 April 2003), he made no mention of the transmission incident nor the resulting agonising pain to Dr Verhoef. Dr Verhoef's notes state only:

Back injury [for] six weeks. Query cause. Jobs at work aggravate it. Jarred back in pothole two weeks ago...[112]

103 In his report concerning that consultation, Dr Verhoef noted there was 'no specific one-off injury but a succession of strains to his back over a period of time'.[113] Dr Verhoef issued a general certificate stating that Mr Johnson was unfit for work for two days due to back pain.

104 When next seen by Dr Verhoef on 7 May 2003, Dr Verhoef took an expanded history in the following terms:

He said that he had strained his back at work last year whilst lifting an engine part. The original injury was reported at work the next day when the pain worsened overnight. He has had the pain ever since. He has seen a chiropractor and naturopath and has had x-rays taken of his neck and lower back.[114]

105 Also in May 2003, Mr Clive Jones saw Mr Johnson on behalf of the TAFE's workers' compensation insurer. In his report dated 26 June 2003, he gave the following history in relation to Mr Johnson's back injury:

On 25/3/03, he was taking a gearbox repair class, which involved teaching the disassembly and reassembly of gearboxes. A number of students required assistance, and he had to lift the gearboxes himself. Symptoms have been ongoing.[115]

106 In the report of Dr Fish (dated 6 October 2003, having seen Mr Johnson that day), the doctor states that '[i]n March 2003 [Mr Johnson] was working on engines demonstrating to students the assembly and disassembly of engines ... He said that he suffered a recurrence at that time...'[116]

107 Subsequently, in a further report dated 22 October 2003,[117] Dr Fish noted that the transmission work required either the teacher or the students to restrain the piece of equipment as it was unstable on the bench.

108 However, Mr Johnson's answers to interrogatories served by the TAFE demonstrate continuing uncertainty about the incident. The questions and answers state as follows:

Interrogatory 8:

On what date did you:

(a) first experience symptoms of any of the injuries?

(b) first seek medical treatment for any and if so which of the first injuries?

(c) first take absence from work on account of any and if so which of the first injuries?

1. (a)-(c) I first experienced back pain in early 2002 however the condition resolved over a weekend of rest, and I did not consult my doctor. In approximately March 2003, I suffered neck and back strain but treated it with pain relief medication and did not go to the doctors. In April 2003 however, I suffered extreme low back and neck pain which [sic] for which I obtained treatment from my local GP at the Lilydale Clinic. I recall I was prescribed anti-inflammatory tablets, strong pain relief medication and rest. I believe I was off work for about two weeks.

(a) On or about the 25th March, 2003 did you hurt your low back when instructing a student to undo the shaft bold [sic] on a manual transmission?

(b) If yes to part (a) hereof:

• (i) did you seek and/or receive any and if so what medical treatment in respect of that occurrence?
• (ii) were you absent from work for any and if so what period of time as a result of that occurrence?
• (iii) were you restricted from performing your ordinary employment duties as a result of that occurrence for any and if so what period of time?

Answer:

11. (a) & (b) I refer to and repeat my answer to interrogatory 8(ii) above. On this occasion, I strained my back and neck whilst working on an engine, not a manual transmission.[118]

109 Mr Johnson's in-court account is, however, generally consistent with that given to Ms Judith McKenzie (orthopaedic surgeon) in October 2004 (with the exception of the date of injury). In the history taken by her from Mr Johnson, it is recorded that he suffered the injury 'on 12 of that month as he was holding a transmission the student he was assisting jarred this causing him to develop neck pain, an increased level of low back pain and pain to the left calf.'[119]

110 Irrespective of the mechanics of the incident on 25 March, it is clear that Mr Johnson suffered a worsening of his back condition after that date. He was absent from work for several weeks and Dr Verhoef issued three certificates of capacity in respect of Mr Johnson's condition in May and September.[120] These placed restrictions on his return to work (limiting Mr Johnson to 'light duties'), and suggested various other recovery measures. In particular, the certificates stated that his back was aggravated by 'pulling motors apart' and by 'sitting for long periods of time'.

111 There were several attempts at a return to work by Mr Johnson in April 2003 and May 2003. After returning in May 2003, he says that he was given 'no work' at all for a period of time. He occupied himself by doing other teachers' paperwork, marking tests, and completing data entry.[121] On 26 May 2003, he returned to work on higher duties, as per Dr Verhoef's certificate.

112 On 24 July 2003, a company known as Resolutions carried out a worksite assessment to assist in getting Mr Johnson back to work. It was intended that Mr Johnson would return to teaching for 16 hours in the classroom, without any practical or 'heavy' component. He described theory teaching as 'uncomfortable' (as he had to stand for long periods of time), though he managed to get by.[122]

113 Resolutions also provided a counsellor, who saw Mr Johnson in July and August 2003. Mr Johnson's work dates increased on a gradual basis throughout the year.[123]

114 In a memorandum completed by Mr Williams in September 2004 it is noted that Mr Johnson returned to work on light duties in late May 2003 for 12 hours per week.[124] Dr Verhoef reported that by 21 July 2003 Mr Johnson had returned to work for 12 hours of teaching per week, and that he was not capable of doing more without aggravating his back.[125]

115 In August Mr Johnson's hours were increased to 16 hours per week. Starting on 10 September 2003, Dr Verhoef recommended that Mr Johnson's teaching duties be increased from 16 to 18 hours per week, although it appears that he remained on a 16 hour roster for most of that year.

116 Dr Fish made an OH&S inspection of the work site in October 2003 (which I mentioned earlier), and recommended Mr Johnson's return to work for 20 hours per week with 'no heavy lifting, no foreseeable use of hand tools, and engag[ing] the assistance of students and/or fellow colleagues with transmission and engine work'.[126] Dr Fish also commented that 'most other tasks are lightweight in nature and can be carried out by merely demonstration or pointing out the necessary tasks to the apprentices by the worker.'

117 Dr Verhoef's notes record that by the end of the year Mr Johnson felt as if he could do full-time teaching duties but was still lingering on 16 hours per week. This situation continued into the New Year, and in February 2004 Dr Verhoef recorded that Mr Johnson's back condition had allowed him to return to work over the holidays, although driving and bending tended to bring on his back pain again.[127]

118 This observation is consistent with Mr Williams' 'WorkCover History' memorandum, which indicates that Mr Johnson had told him that he was coping well with his return to normal teaching duties over this period.[128]

119 So by early 2004, Mr Johnson had resumed teaching classes on a 20 hour (i.e. normal) basis, but with restrictions on heavy lifting.

120 By mid-2004, however, Mr Johnson says that Mr Williams changed the timetabling arrangements and assigned Mr Johnson to 'heavy' practical classes. Despite Mr Johnson's protestations, he taught the classes as directed. However, he 'made an extreme effort not to do very much manhandling at all'.[129] Mr Williams says, and I accept, that whilst Mr Johnson was rostered to teach practical classes, Mr Williams complied with the terms of Dr Verhoef's certificates and Dr Fish's recommendation, and instructed Mr Johnson to avoid heavy lifting and seek assistance where appropriate. Mr Johnson was to carry out his administrative tasks as he had in the past.[130]

121 The question of this timetabling and the differences between the two men as to the work Mr Johnson should have been carrying out at this time goes to the heart of the bullying complaints made by Mr Johnson, which I shall deal with later.

122 Returning now to the incident, I am satisfied that on 25 March 2003, Mr Johnson sustained a significant injury to his back in the course of his employment. Notwithstanding the inconsistencies in reporting (particularly to Dr Verhoef), I think that Mr Johnson's incident report and the notes of Mr Read included within it (and the follow up email from Ms Alex) make it more likely than not that this accident occurred when Mr Johnson tried to restrain the transmission from slipping off the bench. The accounts given to Mr Jones and Ms McKenzie tally, in a general sense, with this version. Allowing that the event is not adequately described by Mr Johnson in other contemporaneous accounts, it remains a plausible cause of his injury, particularly in light of the remarks of Dr Fish.[131] Whilst I am not satisfied that the immediate consequences were as described by Mr Johnson (i.e. the extreme, immediate pain he alleges), I am convinced that Mr Johnson sustained a significant worsening of his condition as a result of this incident and that it occurred when he endeavoured to restrain the transmission on the bench.

123 Mr Johnson says that he was allocated to four weeks of 'heavy' practical teaching in the workshop in June 2004. During the fourth week of teaching, in an automatic transmission overhaul session, he aggravated his back injury when passing a clutch pack (a small, cylindrical drum weighing 1-1.5kg) to a student.[132] His own assessment was that in combination with four weeks of workshop teaching and standing on concrete floors for long periods,[133] the simple twisting action (in passing the clutch pack to the student) caused his injury. The weight of the clutch pack was small: indeed, it was well below the 10kg lifting limitation that Dr Verhoef imposed six months later.

124 Mr Johnson says that he squarely blamed Mr Williams for his injury, based on his view that Mr Williams had required him to engage in teaching beyond his limited physical capacity.[134] Mr Johnson asserted that the TAFE was in breach of the worksite assessment prepared by Dr Fish in October 2003, which specifically stated that he was not to teach any transmission classes. Mr Williams, however, insisted that it was possible to teach the various practical classes without lifting more than 10kg, as Mr Johnson could have asked other teachers to assist in setting up and packing up the equipment for the class, and sought the assistance of students to do any moderate to heavy lifting during the class.[135]

125 Mr Johnson asserts that he completed an incident report form almost immediately, and that this was witnessed by Mr Streader.[136] Mr Johnson said in the report that he had been asked to do heavy lifting work.

126 Mr Streader gave evidence that in 2004 he witnessed an incident report pertaining to Mr Johnson, but that it had since 'gone missing'.[137]

127 Dr Verhoef recorded in his notes a visit from Mr Johnson on 22 June 2004:

Mr Johnson said that instructing students on automatic transmission repair had aggravated his back. He told them that he was not ready for this type of work but they just told him not to lift anything heavy...[138]

128 Overall, I consider that there is sufficient independent evidence to reach the conclusion that in mid-2004, whilst carrying out work on automatic transmissions, Mr Johnson twisted and aggravated his back when passing a clutch pack (which weighed 1-1.5kg) in the course of a lesson.

129 In relation to the provenance of the back injury I have also reached the following conclusions:

• Mr Johnson suffered a back injury as an apprentice in 1971, which caused him to have time off work.[139] According to Mr Johnson, his back had recovered by 1976. Whether this account is accurate is uncertain, although I am satisfied that by 1992 this injury was quiescent.

• Whilst the clinical notes of Dr Verhoef record, in 1992, a prior history of chronic back pain,[140] there is no evidence that in the ten years before April 2002, Mr Johnson had experienced any significant episodes of back pain. Nor, should I add, is there any evidence that his 'chronic low back pain' impaired his work capacity. Notwithstanding a number of references in the medico-legal reports to ongoing low back pain,[141] Mr Johnson denied such a history and this is corroborated by Dr Verhoef's clinical notes.[142]

• There is no evidence to support the proposition that Mr Johnson's general manual handling (which was intermittent and of moderate intensity) caused any incapacity to his back: much of his work was light, particularly that of classroom teaching. Rather, it seems that each of the isolated incidents, and particularly those of the engine stand and the manual transmission, produced the problems. This view is supported by Ms McKenzie, who after examining Mr Johnson stated in 2004 (when Mr Johnson was on light duties) that:

In my opinion Mr Johnson's employment on 10 April 2002 [the engine stand incident] was the significant contributing factor to the occurrence of the back injury; his employment thereafter and in particular his employment on 12 March 2003 [referring to the manual transmission incident] further aggravated the condition.[143]

Negligence and breach of statutory obligations on the part of the TAFE: the manual handling claim

130 The question then is whether any of the three incidents, which I have found proved, give rise to liability for common law negligence or for breaches of statutory workplace obligations on the part of the TAFE.

1. The duty owed by the TAFE to Mr Johnson was described by the High Court in Czatyrko v Edith Cowan University[144] as follows:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[145]

1. It was re-stated by the High Court in Leighton Contractors v Fox[146] in the following terms:

An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.[147]

133 In addition to addressing the TAFE's liability at common law, it is necessary to determine whether the work carried out by Mr Johnson in the various incidents was in breach of the Regulations.[148]

134 For any of regs 13, 14 or 15 to be engaged it is necessary to establish that Mr Johnson was engaged in 'manual handling' as defined by reg 5. As the term is defined as 'any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object,' it is clear that Mr Johnson was engaged in manual handling on each of the three incidents which caused him injury (although handling the clutch pack required minimal exertion).

135 Regulations 13 and 14 are enlivened if an activity falls within the definition of 'hazardous manual handling', as defined by reg 13(2). I have set out Mr Johnson's tasks at [70]. I am satisfied that Mr Johnson was engaged in a number of hazardous manual handling tasks, as detailed in reg 13(2), when carrying out some of the teaching in the workshop. I regard the moving of the engine and the manual transmission as falling within this definition. I am dubious as to whether the handling of the clutch pack fits within this definition. In any event, I do not believe that this exercise posed a risk of musculoskeletal disorder as required by reg 15 - which is, as I discuss in a moment, the critical provision. It is to be noted that reg 15 does not necessarily involve hazardous manual handling, but manual handling generally.

136 Regulation 13(3) obliges an employer to ensure that any task involving hazardous manual handling is identified in a number of different situations, e.g. prior to any task involving manual handling being 'undertaken for the first time in a workplace'; or if a 'musculoskeletal disorder ... is reported by ... an employee'. Regulation 14 complements the previous regulation and requires an employer to ensure that a risk assessment is undertaken where hazardous manual handling has been identified in accordance with reg 13. The employer must ensure that the assessment is carried out in the prescribed way and, in certain circumstances, must record the results of that assessment.

137 For present purposes, it suffices to say that breach of either of these provisions does not, of itself, lead to a conclusion that such a breach is causative of injury. One regulation simply requires identification of the risk, and the other, the carrying out of a risk assessment.[149]

138 In reality, the operative section for the purposes of a civil proceeding is reg 15, which imposes a positive obligation on an employer to eliminate or reduce the risk posed by manual handling. This provision does not use the expression 'hazardous manual handling' but rather refers to the risk of musculoskeletal disorder. It provides:

(1) An employer must ensure that any risk of a musculoskeletal disorder affecting an employee occurring -

(a) is eliminated; or

(b) if it is not practicable to eliminate the risk, is reduced so far as is practicable.

139 The expression 'musculoskeletal disorder' is defined in reg 5 to mean 'an injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease which is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant.'

140 The word 'risk' is defined in the same provision of the Regulations to mean 'the likelihood of an injury, illness or disease occurring due to exposure to a hazard'. The 'likelihood' referred to in this definition is that of 'a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent'.[150]

141 I am satisfied that the impugned work on two of the occasions identified by Mr Johnson - the engine stand incident and the manual transmission incident - posed a risk of a musculoskeletal disorder to him within the meaning of reg 15. The clutch pack incident, whilst occurring in the context of an automatic transmission class, was essentially the equivalent of passing a carton of milk and posed no such risk.

142 I now address each of the three incidents and whether there was any breach of duty (common law or statutory) on the part of the TAFE and any contributory negligence on the part of Mr Johnson.

143 As I mentioned earlier, the incident report filed on 12 April 2002 is consistent with Mr Johnson's account given at trial about the difficulties in using the engine stand, and presents a negative assessment of their safety. In it, Mr Read writes:

Engine stands are very heavy, clumsy + unsafe to use as they do not move easily.[151]

144 Under the heading 'Controlling the risk', Mr Read has ticked the box next to the words 'Substitute less hazardous option.'

145 The TAFE contends that, notwithstanding the difficulties associated with the stand, Mr Johnson had ample opportunity to seek assistance from other staff, and that this was the appropriate course for Mr Johnson to adopt: he knew the stand was difficult to move (bracing himself before each attempt), and he had injured his back in the past. Mr Williams stated that there was 'ample time' between 4:30 and 5pm to seek assistance from other people in the staffroom to assist in packing up.[152]

146 I do not accept the submission made by the TAFE that, in effect, a reasonable system involved Mr Johnson seeking (without direction or instruction) assistance from other staff. The decisions of the High Court in cases such as O'Connor v Commissioner for Government Transport[153] and McClean v Tedman[154] answer that proposition. An employer's obligation is to devise and maintain a safe system of work. In McClean, the majority of the Court said:

The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.[155]

147 It is unreasonable to expect a teacher manoeuvring an engine stand to go searching for the assistance of other teachers - particularly late in the day. Other teachers may not be available, or may be unwilling to assist. The reasonable solution to the problem was the provision of an appropriately moveable engine stand which would not jam. I infer from Mr Read's report that this was a problem that was known to the TAFE, and I also infer from Mr Johnson's evidence (which was not challenged on this point) that a ready solution was available. I am satisfied that there was a breach of the common law duty of care owed by the TAFE to Mr Johnson.

148 Mr Johnson, corroborated by Mr Streader,[156] gave evidence (which was undisputed) as to the introduction of a new form of engine stand not long after his accident. There was no suggestion that such a device could not have been obtained at an earlier point in time.

149 I am also satisfied, for similar reasons, that reg 15 of the Regulations was breached by the TAFE. The risk of the engine stand sticking was known to the TAFE, as indicated by the incident report. A practical way of fixing the problem would have been to use an appropriate mechanical aid, or to replace the faulty engine stand, such as that provided in 2006.[157]

150 The TAFE contended that Mr Johnson's failure to seek assistance amounted to contributory negligence. I do not accept that his actions could be so described.

151 It can be argued, as the TAFE did, that Mr Johnson's failure to seek assistance was a clear example of an employee failing to have regard for his own safety. However, that is to look at that alleged failure in the absence of context. Here it was the employer's obligation, as I have explained, to devise and maintain a proper system of work.[158] It was the employer's failure to provide an appropriate means of moving the engine that caused the problem. Mr Johnson felt obliged to move the stand to ensure that it was not left in a position where it might constitute a hazard. He was following standard practice with respect to the final lesson for the day.[159] Indeed, it was not suggested that he was acting in any way contrary to instructions or to the practices adopted at the TAFE. I think there is real plausibility in his contention that it simply was not practicable to ask students or fellow employees to give a hand - particularly late in the afternoon. He did the best he could given the unsatisfactory nature of the engine stand.

152 I am not satisfied that the TAFE has established that Mr Johnson's actions demonstrate any contributory negligence in the setting of this industrial accident.

153 I repeat that I am not satisfied as to the occurrence of this event or any sequealae from it.

154 As I indicated earlier, I am satisfied this is the most significant of the manual handling incidents, notwithstanding that I reject Mr Johnson's evidence as to the immediate sequelae of this exercise. What is abundantly clear is that after this incident Mr Johnson went from being able to carry out heavy duties to being only capable of performing light work.

155 For the reasons I set out at [92]-[122], I am satisfied Mr Johnson suffered injury when he endeavoured to restrain the transmission as it slipped off the work bench.

156 Accepting that course of events, in my view it is clear that the TAFE gave inadequate consideration to how students or teachers were expected to hold down heavy, cumbersome and greasy manual transmissions. I am satisfied that an appropriate system of work would have involved the provision of a vice or similar device which could hold a transmission in place without requiring physical force on the part of the teachers or students.

157 In the relevant incident report, Mr Read recommended a 'proposed modification to benches with specialised rotating transmission vice attached to bench'. At the end of the document, he noted that 'Rectification of this hazard is an urgent matter'.[160]

158 I accept the submission of Mr Johnson's counsel that this incident report clearly demonstrates a significant hazard in the workplace, and is demonstrative of breach.

159 Accordingly, I am satisfied that there was a breach of common law duty on the part of the TAFE.

160 For similar reasons, I am satisfied that the TAFE's failure to provide adequate vices or restraining devices on the work benches, or other mechanical assistance, amounts to a breach of reg 15. This conclusion is fortified by the fact that the lack of such equipment could well have been addressed at the time that the TAFE moved its practical classes to the Box Hill campus. Mr Streader said and I accept that in 2006 devices were introduced to secure equipment on benches.[161]

161 No allegation of contributory negligence was made in respect of the manual transmission incident.

162 Mr Johnson submits that he should not have been working at the time the injury occurred, and that it was brought on by the fourth week of 'heavy' teaching and standing on concrete floors for eight hours per day. The activity itself appears to have required minor effort (passing a 1-1.5kg clutch pack to a student), but the incident is alleged to have caused a significant re-aggravation of Mr Johnson's injuries.

163 First, I do not accept that Mr Johnson was standing on concrete floors for eight hours per day. I referred to this allegation earlier, which is another example of Mr Johnson's tendency to exaggerate. He rarely worked an eight hour day, and when he did, there was a significant classroom component, during which he could have been seated. On both the evidence of Mr Williams and common logic, there must have been several opportunities for breaks each day (not the least being morning tea, lunch and afternoon tea), and chairs throughout the area upon which Mr Johnson could have sought some respite.

164 Second, the teaching of this class appeared to be well within the confines of Mr Johnson's restricted work capacity provided that he avoid heavy lifting work. Admittedly, Dr Fish originally advised that Mr Johnson should not participate in manual transmission classes. However, as I have explained, his condition improved during the balance of 2003, and the TAFE was entitled to be guided by Dr Verhoef's certificates which provided updated assessments of Mr Johnson's capabilities. Indeed, the clutch pack was well below the 10kg lifting limit recommended by Dr Verhoef in March 2005.[162] Mr Johnson accepted in cross-examination that taking an automatic transmission class would not involve heavy work unless he undertook the mechanical work himself (presumably to demonstrate for, or to accompany, the students). I accept that by the time Mr Johnson had returned to practical classes on light duties, Mr Williams told him to seek assistance from the students for only heavy lifting or to perform any actions which involved the use of significant physical force.[163]

165 The gravamen of Mr Johnson's complaint with respect to this incident was not the lifting of a (particularly light) piece of equipment, but that he had been asked to perform manual transmission work at all. It is abundantly clear from the contemporaneous material that during 2004, Mr Johnson and Mr Williams were engaged in a stand-off about the type of duties Mr Johnson should be performing. The reality, however, is that he was capable of undertaking activities for which was certified as fit by Dr Verhoef - at the time of this incident, activities which did not involve 'any heavy work'. It was entirely reasonable for the TAFE to require Mr Johnson to carry out this work, provided it was within the scope of the activities described in the relevant capacity certificates.

166 In summary, there is no evidence that this incident was the product of Mr Johnson carrying out heavier work than he ought to have during the period - rather, it seems to simply have been a strain of the back occasioned by lifting a light piece of equipment.

167 This incident is of minor importance, and in my opinion, involves no breach of the common law duty of care owed by the TAFE or of its statutory obligations. I repeat that the item in question, a clutch pack, was extraordinarily light, weighing approximately 1-1.5kg. It was well within the lifting restrictions placed on Mr Johnson, and indeed, would have been a manageable weight for any employee (with or without a back condition) to support. There was no risk of injury or aggravation of his previous back injury in such a situation. The suggestion that Mr Johnson should have had physical assistance or some form of manual assistance in moving such a light item is nonsensical.

168 In relation to the engine stand and the manual transmission incidents, the TAFE breached its common law and statutory duties. It did not breach these duties in relation to the clutch pack incident. There was no contributory negligence on the part of Mr Johnson.

Assessment of damages: the manual handling claim

169 Mr Johnson sought damages for pain and suffering and for loss of enjoyment of life for his neck and back injuries.[164]

170 It would be impractical, if not close to unworkable, to endeavour to isolate the effects of the engine stand incident, and the manual transmission incident separately. Accordingly, I will take the pragmatic approach of analysing the combined effect of the two incidents, which negates any concerns as to double counting.

171 Mr Johnson has been examined by a small army of doctors and specialists since the first incident occurred in 2002. There is a wide range of opinions in relation to the genesis and development of his injuries: some are of the view that his symptoms are unrelated to work, while others point to the specific incidents in 2002 and 2003 as being causative; still others have opined that Mr Johnson's physical problems are predominately psychologically based, or, at the very least, exaggerated.

172 I referred earlier to Mr Johnson's difficulties in giving consistent, accurate evidence. The medical specialists experienced similar difficulties when eliciting information from Mr Johnson. A good example is that of Mr Carey, an orthopaedic surgeon who saw Mr Johnson for a medico-legal assessment in August 2012. Mr Carey noted, after an 85 minute consultation, that 'the history taking was difficult however, and I cannot be certain as to the accuracy of dates and incidents.'[165]

173 Because of Mr Johnson's vagaries as an historian and the lapse of time since he was injured, I prefer in the main to rely upon the view of the treating doctor, and those medico-legal specialists who saw him in the early days of this saga.[166] I regard any attempt at a diagnosis based upon Mr Johnson's history once proceedings were underway as heroic and, perhaps, foolhardy.

174 I shall deal with the back and neck injuries separately.

175 Mr Johnson initially injured his back in the 1970s, and experienced some minor back disturbances in the years leading up to April 2002. However, as I said earlier, these were exactly that: minor. I am satisfied that his back had never caused him any great difficulty, nor significantly hampered his ability to work until that time.

176 In my view, it is clear that the engine stand incident was the precursor to Mr Johnson's back problems and that the manual transmission incident produced a significant aggravation of his condition. I am satisfied that the combined effect of both incidents transformed what was a susceptible back capable of carrying out normal activities (I say susceptible in the sense that his obesity and degenerative changes made him a real candidate for a back breakdown in middle age) into a seriously weakened back with the attendant limitations. I repeat that I regard the crank shaft and clutch pack incidents as being of little or no consequence. I should add that there was no evidence that there were events outside work which compromised Mr Johnson's back, apart from his excess weight and lack of exercise.

177 Dr Verhoef has consistently maintained the opinion (which I accept) that Mr Johnson's employment was the 'likely cause of [his] back injury and neck injury and the psychological problems were secondary to both chronic pain from the injuries and how this case was handled by his employer'.[167]

178 To similar effect, in October 2004, Ms McKenzie stated that 'in my opinion Mr Johnson's employment on 10 April 2002 was the significant contributing factor to the occurrence of the back injury; his employment thereafter and in particular on 12 March 2003 [referring to the manual transmission incident] further aggravated the condition'.[168]

179 I should mention that I have no real confidence in the opinion of Mr Brearley, who stated that:

[T]hese (back) changes have occurred as a result of the various incidents of injury which have been referred to in detail in the history and also by the very nature of his heavy work as a motor mechanic and teacher of automotive trades. His employment over a long period with the Box Hill Institute of TAFE has been a definite contributing factor to the injuries occurring and to his present condition of relative disability.[169]

Mr Johnson did not work as a motor mechanic at the TAFE, and only a small portion of his work could be described as heavy.

180 The radiography is inconclusive in terms of significant pathology. Mr Johnson's lumbar spine MRI in 2004 showed no specific abnormalities, but some minor degenerative changes. There have been no subsequent scans.

181 Ultimately, I accept that the incidents rendered symptomatic the degenerative changes in Mr Johnson's spine. The evidence of Dr Verhoef and Ms McKenzie confirms that the combination of the engine stand incident and the manual transmission incident in all probability produced an aggravation of pre-existing degenerative changes of his spine with, perhaps, some disc dysfunction. I am satisfied that Mr Johnson has reduced function of his back due to these incidents, and that this injury continues to be productive of symptoms.

182 I am satisfied that both the engine stand and manual transmission incidents produced ongoing symptoms, particularly after the second incident. In addition, I accept the evidence of Dr Verhoef that there remains a link between the current symptoms and Mr Johnson's work accidents.

183 The causal relationship between the work at the TAFE and Mr Johnson's back condition was not questioned by Mr Brendan Dooley or Mr Michael Dooley. Mr Carey was troubled by Mr Johnson's inability to give an accurate account of his symptoms. I reject Dr Kenna's opinion which is dependent upon an incorrect history.

184 Mr Johnson insists that he has suffered ongoing neck pain since the manual transmission incident in March 2003, although there is scant evidence in this respect (particularly in comparison to the back injury and associated back pain). There is minimal reference to neck pain in any of Dr Verhoef's contemporaneous clinical notes.

185 The TAFE contends that Mr Johnson's neck injury is unrelated to the work incidents. It relies in part on the examinations of Mr Brendan Dooley in 2008, in which Mr Dooley concluded that Mr Johnson had not sustained any physical injury to his neck during the course of his employment.[170]

186 Similarly, Mr Roy Carey is sceptical of the occurrence of any neck injury during the course of Mr Johnson's employment at the TAFE. In his report of August 2012 he states:

It is unfortunate that there is little written in here about the onset of cervical [neck] pain, its severity etc. This appears to be at considerable variance with Mr Johnson's recollections. Whereas in many situations his recollection as to times and dates seems to be poor, he was absolutely certain that the neck pain was at its most severe after the injury of 2003, settled (but never resolved) and then has become worse recently.[171]

Given Mr Johnson's self-confessed difficulties with memory, notwithstanding his definitive memory as to the onset of his neck as expressed to me 14.8.2012, I find it difficult to conceive that Dr Verhoef, Mr Johnson's longstanding general practitioner would not have recorded anything about this neck pain in his very extensive reports.

...I would conclude that whilst Mr Johnson may have suffered some neck discomfort at the time in 2003, it seemed of little or no significance to his general practitioner, and all these years later, I would opine therefore that his current cervical [neck] pain syndrome relates to symptomatic cervical spondylosis due to age, and that this opinion is much more likely than an opinion which states that he had a significant neck injury at the time, or that the current problem relates to an aggravation of this cervical spondylosis at the time of injury in March 2003.[172]

187 Mr Carey was correct in saying that there was no mention of the neck injury in Mr Johnson's patient history with Dr Verhoef. However, that is not the end of the story, as Dr Verhoef noted the neck injury in WorkCover certificates between 12 August 2003 and 20 April 2004 (which referred to 'neck pain and headache'). During the trial, Dr Verhoef stated that it was possible that Mr Johnson mentioned the neck injury to him on a visit on 12 August 2003 whilst Dr Verhoef was completing a certificate, and this is why the neck injury appeared on the certificates for a while until the back injury and psychological effects predominated.[173]

188 In re-examination, Dr Verhoef accepted that he issued a certificate of capacity on 9 September 2003 which identified neck pain and headaches and related these symptoms to Mr Johnson's work.[174]

189 Similarly, the report of Ms McKenzie in October 2004 refers to Mr Johnson experiencing neck pain immediately after the manual transmission incident. However, she also states that in tests of his neck movement carried out at that time the 'movements were carried out freely and none was said to cause discomfort or pain'.

190 In the absence of any contemporaneous complaint or diagnosis, I am not satisfied that the engine stand incident produced any neck injury. Although there is limited reference to Mr Johnson's neck injury at the time of the manual transmission incident, I am satisfied that it is connected to that activity for the following reasons:

(a) Eight Certificates of Capacity completed by Dr Verhoef between August 2003 and April 2004 refer to neck pain.[175]

(b) Both the viva voce evidence of Dr Verhoef and a questionnaire filled out by him on 3 February 2004 indicate that Mr Johnson had neck pain.[176]

(c) The clinical note of 7 May 2003 in Dr Verhoef's records indicates that Mr Johnson had sought treatment with a chiropractor and had received x-rays for his neck and lower back.[177]

(d) A questionnaire completed by Mr Paul Randals on 6 February 2004 states that he was treating Mr Johnson for neck pain, and he completed a contemporaneous WorkCover Certificate of Capacity noting Mr Johnson's 'lumbar back pain and sciatica, neck pain and headaches due to nature of work'.[178]

191 I readily accept, as noted by Mr Carey, that the neck problems are minor in terms of reported symptoms in comparison to Mr Johnson's back injury. Nevertheless, I am satisfied that this injury originated from the manual transmission incident.

192 That, however, does not resolve the remaining question: is there a relationship between the current symptoms and the manual transmission incident?

193 Whilst I am satisfied that Mr Johnson sustained an injury to his neck in the manual transmission incident, it is not clear whether that injury plays any real part in his symptoms today (the MRI of his cervical spine taken in 2011 shows multi-level disc degeneration and disc protrusion).

194 Although the neck is occasionally referred to in Dr Verhoef's notes, such references are rare. In addition, Mr Johnson's neck problems are not mentioned in Dr Verhoef's lengthy original report which summarises Mr Johnson's state and identifies his back and psychological symptoms as his main (indeed, only) conditions.[179]

195 Mr Brearley thinks that there is a connection between the injuries and Mr Johnson's current condition, but qualifies this statement as being made 'on the information given to me'.[180]

196 The reports of Mr Tange (the treating neurosurgeon who saw Mr Johnson in 2011 and 2012) do not address the question of whether the current neck symptoms have any relationship to particular work incidents, other than noting a 'workcover injury in 2003.'

197 Although Dr Verhoef supported the existence of such a link,[181] in my view, that opinion must be qualified in the light of his earlier reports which, as noted above, do not mention Mr Johnson's neck condition. This, in turn, must be balanced against the fact that the neck pain is discreetly referred to in a number of Dr Verhoef's capacity certificates commencing in August 2003.

198 For my part, I think there is considerable force in the opinion of Mr Michael Dooley[182] (engaged by the TAFE) that this injury is related to Mr Johnson's work and is still playing a part in Mr Johnson's overall condition, in the sense of being productive of intermittent neck pain. I propose to rely upon this as the best indicator of the relationship between the work incidents and Mr Johnson's current neck condition.

• restricted movement, largely due to pain and spasm (i.e. unable to sit for long periods of time); and

• broken sleep as a consequence of pain (and psychological upset).

200 Mr Johnson says that as a result of these sequelae, he is now unable to undertake ordinary daily activities such as doing the housework and gardening, maintaining his front lawn, socialising or going on outings. Further, Mr Johnson no longer partakes in his former physical hobbies such as ballroom dancing, mountain biking, boating, camping or four-wheel driving.

201 Mr Johnson has required, and continues to require, the following treatment:

• Physiotherapy, myotherapy, and the use of a TENS machine for remedial massage.

• Visits to Dr Verhoef approximately every two months for medication and check-ups (or more frequently, when symptoms are considerable).

• Since October 2011, visits to Ms Teresa Dummett (clinical myotherapist) every three weeks for dry needling and massage to the neck, mid and lower back.

202 For a short period of time in 2012, surgery was mooted by Mr Damien Tange: in particular, a cervical fusion and decompression of his right C7 nerve root (regarded as the potential source of his problems) was considered.[183] However, operative intervention was ultimately considered to be unwarranted, and no surgery is presently proposed.

The effect of the back and neck injuries on Mr Johnson's life

203 Mr Johnson's symptoms have continued to varying degrees over the past 10 years. Whilst I accept that there is a real psychological barrier behind Mr Johnson's inability to undertake daily activities or to improve his condition (quite distinct and unrelated to his physical injuries), I am nonetheless satisfied that there is an element of chronicity with his back and neck symptoms (as I have tried to explain) related directly to the two incidents.

204 However, I am also satisfied, as will become apparent in the course of my reasons in relation to the psychiatric injury claim, that the back and neck complaints are now subsidiary to Mr Johnson's obsession with his alleged bullying and harassment by Mr Williams. Mr Johnson is prone to exaggeration and I treat his claims regarding the nature, extent and frequency of his back and neck symptoms with a high degree of scepticism. In my opinion, it is not the back or neck pain that is causing the major interference with Mr Johnson's enjoyment of life, but rather his obsession and focus on the bullying and harassment claim. This is consistent with the original report of Dr Verhoef, who noted that any disabling effect on Mr Johnson was due to both physical and 'especially' psychological factors.[184]

205 In summary I do not accept that these symptoms are as debilitating or as frequent as Mr Johnson suggests. However, this is not to deny that back and neck symptoms persist and that they interfere to an extent with Mr Johnson's lifestyle.

206 It is settled law that a plaintiff can only recover damages for that part of his condition attributable to the tortious acts of the defendant. It is equally settled that in assessing damages for pain and suffering, a court must take into account 'the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar ... condition'.[185]

207 It follows that in this case, it is also necessary in assessing the effect of the neck and back injuries caused by Mr Johnson's work, to take into account the evidence which indicates that Mr Johnson's obesity[186], and the underlying degenerative condition of his back (according to Dr Verhoef, 'widespread degenerative disease throughout the spine')[187] would have produced at least some of the symptoms from which Mr Johnson now suffers.[188]

208 Counsel for Mr Johnson posited a figure of $300,000. I regard this suggestion as totally devoid of any evidentiary foundation. Similarly I regard the figure of $50,000 proposed by counsel for the TAFE as disproportionately low.

209 Taking into account all of the factors just mentioned, I think that an appropriate award of damages is $125,000.

The psychiatric injury claim: Mr Johnson's interaction with Mr Williams from 2003 to 2006

210 Before I set out my findings in relation to the events said to give rise to Mr Johnson's psychiatric injury claim, I should mention several matters relevant to my overall assessment of his allegations.

211 First, in Swan v Monash Law Book Co-operative,[189] Dixon J said as follows of 'workplace bullying':

The Worksafe Victoria Guidance Note,[190] to which I have already referred, provides a definition of workplace bullying in these terms:

Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety. Within this definition 'unreasonable behaviour' means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten; 'behaviour' includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening; 'risk to health and safety' includes risk to the mental or physical health of the employee.

This definition recognises the relationship between conduct and the risk to health and safety. In the present circumstances I am concerned with that relationship in the context of risk of a psychiatric or psychological injury.

In Mount Isa Mines Ltd v Pusey, Windeyer J observed that, 'It is however today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had'. As Sheller JA observed in O'Leary v Oolong Aboriginal Corporation Inc, cases in the ensuing four decades since Mount Isa Mines Ltd v Pusey 'demonstrate judicial recognition that the medical profession's view of the aetiology of such disorders has been accepted by the lay world'.

The definition provided in the guidance note emphasises relevant features of that aetiology. An established pattern of behaviour is significant, as its persistent nature creates the foreseeable risk to health. The subject behaviours, under the rubric of bullying, have the characteristic of victimising, humiliating, undermining or threatening the victim and the definition requires that a reasonable person would expect the relevant behaviour in all of the circumstances to have that effect. The essential characteristics of behaviour that may create a risk to the mental or physical health of an employee are that it is both repeated and unreasonable.

212 In Brown v Maurice Blackburn Cashman,[191] the Court of Appeal accepted the test set out in the guidance note and went on to say:

(a) was there unreasonable behaviour directed towards the appellant, ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten the appellant; and

(b) if there was, did it occur repeatedly?

213 Second, critical to the analysis of both the scope of the duty owed by the TAFE and its breach, is an assessment of 'the context and objective meaning of the acts that are complained of.'[192] In the present case, the conduct of Mr Williams has been described as bullying and harassment. But that is simply the nomenclature of Mr Johnson and his lawyers. One person's bullying may be another's exhortation, particularly in an employment situation. One cannot lose sight of the primary question: whether the TAFE's conduct (or that of its employees) amounted to a breach of its duty to exercise reasonable care in reducing or eliminating the risk of psychiatric injury to Mr Johnson.

214 Third, following from the second proposition, the conduct of the TAFE or its employees including Mr Williams, however characterised, must fit within the legal tests identified by superior courts and particularly, that of the High Court in Koehler v Cerebos (Aust) Ltd.[193] I will return to the authorities relevant to breach in due course but for present purposes it suffices to say that the following questions, at least, require consideration in any analysis of Mr Johnson's psychiatric injury claim:

(a) Was it reasonably foreseeable that the conduct of Mr Williams towards Mr Johnson would cause a psychiatric injury to Mr Johnson?

(b) Were there any evident signs of the possibility of psychiatric injury occurring to Mr Johnson in the course of his work, i.e. signs of particular vulnerability in the performance of Mr Johnson's work duties (including his interactions with Mr Williams) which was putting him at risk?[194]

(c) Was Mr Williams' behaviour towards Mr Johnson outside the norm of actions contemplated by Mr Johnson's contract of employment?

215 Finally, I accept that the Koehler principles[195] are not applicable in a case in which it is established that the actions of an employee constituted deliberate bullying of a fellow employee.[196]

216 As set out at [20]-[21], that the pleaded case was of ongoing harassment and bullying, particularly between 2003 and 2006.

[Mr Johnson] sustained further injury in the course of his employment with [the TAFE] particularly in the period from approximately 2003 in circumstances where -

(a) by reason of a pre-existing spinal injury [Mr Johnson] was working for an extended period reduced hours and reduced duties;

(b) despite his physical restrictions [Mr Johnson] was required to undertake a heavy teaching workload within limited allocated class time;

(c) [Mr Johnson] was subjected to bullying and harassing behaviour on an ongoing basis by his manager; and

(d) [Mr Johnson] was subjected to behaviour on the part of the Defendant its servants and agents contrary to the relevant Occupational Health and Safety Legislation, agreements, arrangements and policies designed and purported to be implemented by [the TAFE] -

as a result of which [Mr Johnson] suffered psychological injury...[197]

218 The following specific allegations were made in the particulars of negligence:

(g) Failing to assess adequately or at all any bullying or harassing behaviour to which [Mr Johnson] was subjected in the course of his employment with [the TAFE];

...

(l) Failing to provide sufficient class time for the teaching of all aspects of the courses in respect of which [Mr Johnson] provided instruction to students;

(m) Permitting [Mr Johnson] to be subjected to repeated bullying or harassing behaviour;

(n) Failing to comply with such agreements, policies or procedures which [the TAFE] had in place or purported to have in place dealing with the relationships between employees of [the TAFE];

(o) Failing to heed the limitations imposed upon [Mr Johnson's] teaching capacity by reason of his physical injuries;

(p) Failing to respond to [Mr Johnson's] deteriorating psychological condition at an appropriate point in time;

...

(s) Permitting [Mr Johnson] to be subjected to variable abuse by other staff of [the TAFE]; and

(t) Permitting [Mr Johnson] to be belittled and denigrated by other staff of [the TAFE].

...

219 At trial, Mr Johnson alleged that the impugned conduct occurred when he returned to work on light duties in April 2003 after injuring his back in the manual transmission incident.

220 From then until he ceased work in March 2006, Mr Johnson said that he was subjected to ongoing put-downs by Mr Williams. He said that Mr Williams told him things like 'everyone is sick of hearing about your back',[198] that he was a 'whinger'[199] and a 'non-team player'.[200] He also said that Mr Williams made little jibes about his weight.[201] Mr Johnson estimated that Mr Williams made these types of jibes more than once a fortnight.[202]

221 In addition to the allegation that Mr Williams made ongoing put-downs to Mr Johnson, Mr Johnson referred to a number of specific events or interactions with Mr Williams during that period which I have set out at [22]-[28] and which he says amounted to bullying and har[203]ment by Mr Williams. 203

222 As I mentioned earlier at [31], the case at trial expanded beyond that of bullying and harassment. In the final submissions it was said to also encompass 'conflict' between the two men.

223 I repeat that I regard Mr Johnson as an unsatisfactory witness. Therefore, independent verification of his account (by way of contemporaneous statements made by Mr Johnson or corroboration by other credible witnesses) is central to unravelling the factual matrix of this case. Accordingly, before I turn to the evidence of Mr Williams and Mr Johnson, I will now summarise the evidence of the witnesses (other than the two protagonists) with my impression of the value of their evidence.

224 I have already set out at [39]-[60] my views as to the reliability of a number of these witnesses.

The evidence of other witnesses as to the alleged bullying and harassment

225 The two witnesses called by Mr Johnson - Mr Pincott and Mr Streader - broadly corroborated Mr Johnson's allegations (both generally and as to several of the discrete incidents).

226 Mr Pincott, who taught in the Automotive Department up until October 2003, confirmed Mr Johnson's allegations of ongoing put-downs by Mr Williams. He said 'there were numerous comments made at different times, both in [Mr Johnson's] presence and when he wasn't there' which put Mr Johnson down.[204] He said that in the lunchroom Mr Williams, in the presence of approximately eight or nine staff, said that Mr Johnson was not up to the job.[205] He also broadly corroborated the three things incident, to which I will return later.

227 I do not accept the evidence of Mr Pincott as to the persistent bullying of Mr Johnson by Mr Williams. Mr Pincott had a massive grudge against Mr Williams - to the extent that he blamed Mr Williams for a bicycle accident which occurred on a day Mr Pincott was supposed to work at the TAFE, but had been rostered off by Mr Williams.[206] Moreover, the gist of Mr Johnson's evidence was that most of the bullying incidents alleged by Mr Johnson occurred after October 2003, by which time Mr Pincott had left the TAFE.

228 Mr Streader taught automotive mechanics at the Box Hill campus from April 2001. His evidence was that he witnessed several interactions between Mr Johnson and Mr Williams where Mr Williams gave Mr Johnson advice about changing his life or told him that he was dragging down the team. He recalled Mr Johnson 'quite often' crying during these episodes.[207] He also gave evidence about how the automotive mechanic courses offered by the TAFE were run.

229 While I accept Mr Streader's account of how the courses operated, I have reservations about his evidence concerning the relationship between Mr Williams and Mr Johnson, which I set out at [56]-[57].

230 I mentioned previously the evidence of Mr Johnson's colleague, Mr Brittle, who acted as Mr Johnson's direct supervisor on a number of occasions when Mr Williams was away, and also that of Ms Hunt, who commenced at the TAFE in the Human Resources Department as the Workplace Support Manager in mid-2005.[208]

231 Mr Brittle commenced as a sessional teacher at the TAFE in 2000, and in late 2002 or early 2003 became a program coordinator in the Automotive Department. Mr Brittle's desk was opposite Mr Johnson's until Mr Brittle moved offices in 2005, but he continued to involve himself with the staff (including Mr Johnson) after his move.[209]

232 Mr Brittle gave evidence that Mr Johnson had discussed experiences of being bullied at the TAFE by previous supervisors.[210] Mr Brittle could not recall Mr Johnson complaining to him about Mr Williams.[211] Nor did he observe any instances of Mr Williams bullying or harassing Mr Johnson. Mr Brittle did not hear Mr Williams call Mr Johnson a 'whinger' or hear him say that he was 'not a team player'.[212] Indeed Mr Brittle said:

I was not aware of any conflicts, long term conflict with [Mr Johnson] and [Mr Williams] I mean, it's news to me that why I am here today is about bullying, to be honest, with [Mr Johnson] and [Mr Williams]. [213]

233 Ms Hunt was responsible for managing WorkCover claims at the TAFE. She said that she was not aware of Mr Johnson complaining about bullying at work,[214] stating that '[h]e didn't make a complaint to me'.

234 She recalled two events involving Mr Johnson. The first related to her investigation of Mr Williams' complaint about Mr Johnson swearing at him during the Good Friday incident (discussed below). On that occasion Mr Johnson spoke to Ms Hunt about issues he was having at work but Ms Hunt could not recall that those issues related to bullying.[215]

235 The second was her involvement in the things happen incident (also discussed below). On that occasion she was asked to speak to Mr Johnson who was extremely upset after the incident - so much so that Ms Hunt sent him home.[216] After that, Ms Hunt tried to assist his return to work.[217]

236 Finally, evidence was given by Mr Shevlin, who was Ms Hunt's superior. He was not aware of any bullying or harassment by Mr Williams of Mr Johnson, having no recollection of receiving complaints of such matters from Mr Johnson.

Bullying and harassment suffered by Mr Johnson prior to 2003

237 Mr Johnson previously consulted Dr Verhoef regarding stress at work.[218] In May 1998 Dr Verhoef prescribed him Zoloft, an anti-depressant.[219]

238 In Mr Johnson's evidence-in-chief he described this episode as follows:

In any event, had there been some issue at work that had caused you upset in 1998---Yes but again, as I said, it was resolved.

It was resolved?---Yes.

Was that to do with interactions with another manager?---Yes.

Were you prescribed Zoloft on only one occasion or more than one occasion or you don't recall?---I really don't recall but I think probably only once, if that was it, yes.

Do you recall taking Zoloft at all at that time?---Yes.

After that prescription and your ingestion of Zoloft, what happened after that?---I felt much calmer. Everything went back to normal.

Did you return to normal or did you continue to have troubles with anxiety or depression?---Well I don't believe I was having any further troubles with anxiety or depression. I don't think so.[220]

239 I mentioned earlier that Mr Johnson had told Mr Brittle about his conflict with his previous supervisor. In fact, Mr Brittle used Mr Johnson's conflict with that supervisor as a case study for a Master's thesis which he was completing on workplace bullying.

240 As part of the project, Mr Brittle asked Mr Johnson to complete a questionnaire about the previous bullying experience. It is not altogether clear when Mr Johnson completed the questionnaire. Mr Brittle said that he submitted his Master's thesis in 2004 and thought that he would have asked Mr Johnson to participate in around 2002.[221] I accept that the questionnaire was completed by Mr Johnson in 2002, soon after he was asked to do so by Mr Brittle.

241 The questionnaire - with answers in Mr Johnson's handwriting - read as follows:

Background (why do you feel that you were being bullied?)

Held a higher position of responsibility/position. Beating acting manager for this position. Never got on with this individual even at teachers college because of his attitude, manner superiority complex to others, SNOB!

How has this had an effect on your working relationship with other colleagues?

Had to try to implement his orders/ instructions never quite clear on what he wanted. Very hard person to work out what he wanted as it changed as his feelings changed.

What processes have you, or did you follow?

Refused to be intimidated by this individual which lead to increased conflicts Refused to do the management role/timetabling until clear instructions provided

Refused to do time tables any more. Made official complaint to H.R. management.

Have you or did you seek any professional advise and what outcome has/did this produce?

Needed counciling to help stress levels. Union useless (resigned from as a result). Doctor for medication. Discussions with other staff.

How do you feel this effected your life, (professionally and personally)?

Less trusting. Stress, depression anger isolated oneself from friends + others and workmates. Didn't want to go to work, felt ill at work. Stopped doing all extras for department eg models, programs. Left job as soon as time came to go. It became a job nothing else.

Do you feel that this has had long term effects of you and in what way?

Has lead to depression low immune system get sick easily and often. Lost confidence in my abilities to deal with difficult, new ideas/processes, conflict resolutions, being a team player, mixing with others socially. No desire for promotions. I want to be left alone. Counting down days to I leave/retire. Low energy. disconnected!

[sic].

242 Mr Brittle incorporated the results of the questionnaire, and the matters raised during his discussions with Mr Johnson, in a case study that formed part of his Master's thesis (detailing Mr Johnson's incident with the alleged bully and the effects of the incident on him). The alleged bully's real name was not used in the study, which stated: [222]

Although [the alleged bully] left his position at least 10 years ago, [Mr Johnson] has found himself in a position where he has been left so damaged by the situation that both mentally and emotionally he feels that it has destroyed his ability to operate effectively within his working and his personal life.

He changed from what was a highly motivated individual to one that has become totally demotivated and unable to focus on his position within the organisation since. He is now less trusting of all his work fellow colleagues suffers from stress, clinical depression, anger and has since increasingly isolated himself from his friends and family. He has taken a minimalist approach to his work, thus resulting in total disengagement of his duties within the organisation.

He now finds that since the incidence [sic], he has increasingly become de-motivated and feels that he suffers with mental instability. He has very little confidence to partake in any tasks and feels that he is unable to accept change and the notion of change within the organisation and his personal life.

He now has no desire for mixing with other people, feels disconnected within his personal and working life and is now counting the days until he reaches retirement.

This scenario has so emotionally traumatised [Mr Johnson] that he feels that he no longer has any purpose in his life both professionally and personally. In addition it really has produced a situation where his health has become such an issue he feels that even health wise [sic] he will never fully recover enough to become a positive energy within his personal and working environment. His life has now become surrounded with negativity that unfortunately spill [sic] into both his professional and personal life effectively producing a spiralling effect that he may never fully recover.

Although he has been offered counselling, he feels that he has been so damaged that he is unredeemable [sic]. [223]

243 Mr Johnson's answers to the questionnaire set out at [241] contain admissions as to the circumstances of the prior bullying and its effect upon Mr Johnson. Counsel for Mr Johnson submitted, 'mostly (if not all)' of the part of the case study (not the questionnaire) set out above contained opinion evidence which was conclusionary. I reject this submission. Although the excerpt contains some opinions of Mr Brittle, which may fall foul of s 79 of the Evidence Act 2008 (Vic), it also contains, on Mr Brittle&#82[224]s account224 (which I accept), a clearly discernible record of statements made by Mr Johnson to him as to his clinical state when he participated in the study which should also be treated as admissions.

244 Mr Johnson disputed the accuracy of the contents of the case study.[225] He said that the way he is portrayed might have been how he felt in the late 90s, but he did not feel that way at the time Mr Brittle was completing his Master's thesis.[226]

245 Similarly, Mr Johnson said that at the time he answered the questionnaire, he did not intend to answer the questions in the present tense. He said that his answers were intended to refer to how he felt during the time of the bullying.[227] He also said that when the alleged bully left in around 2000, 'all these things were resolved'[228] - that is, all the consequences of the bullying outlined in the questionnaire. During his evidence, I asked Mr Johnson to clarify this, and he confirmed that the completed questionnaire was not a statement of his health when the questionnaire was completed, but a reference to his mindset during the previous bullying episode.[229]

246 To put it bluntly, Mr Johnson was not truthful when he gave a number of these answers. It can be accepted that some of the answers in the questionnaire and to Mr Brittle for the purpose of the case study were directed to past events. However I have no doubt, given the substance of the answers provided, and the nature of the questions posed, that Mr Johnson was speaking of his current situation when he responded to questions directed to the long-term effects of this episode. He did not say, for instance, 'these were problems I had in the past but they have now been resolved'. One of Mr Johnson's statements in the questionnaire is telling: 'I am counting the days' until retirement. Similarly, a number of the answers to Mr Brittle's questions which formed part of the case study were framed in the present tense.

247 I am satisfied that in 2002, Mr Johnson still harboured a major psychological fixation over the way he had been treated by his previous supervisor. This, in my opinion, is consistent with his behaviour as it emerged in the course of the evidence - in particular, his tendency to dwell heavily on any event in respect of which he perceives himself to have been wronged, particularly in relation to the workplace and its management by his supervisors.

248 I am satisfied that this episode in the late 1990s had a profound and ongoing effect on Mr Johnson's ability to function, and that it produced episodes of stress, anxiety and depression. I am also satisfied that Mr Johnson's description of the long-term effects of this episode contained in the questionnaire responses and his description of this condition reported to Mr Brittle in the case study accurately reflected the consequences of this episode on his psyche.

249 I reject the suggestion advanced in final submissions by counsel for Mr Johnson that the information provided by Mr Johnson to Mr Brittle should have alerted the TAFE to potential psychological problems in the future. Mr Brittle was a fellow teacher carrying out private research for his own academic pursuits. It can be readily assumed that Mr Johnson provided the information confidentially. Moreover any knowledge acquired by Mr Brittle cannot be attributed to the management of the TAFE. The responsible persons worked in the Human Resources Department and it was not suggested that anyone in that Department was aware of Mr Brittle's studies.

250 I should conclude on this topic by addressing one other issue: the matters contained in Mr Brittle's case study and the questionnaire were not put to Dr Verhoef or Dr Pastore, the two viva voce witnesses, or Dr King, a medico-legal psychiatrist, whose report was tendered as part of Mr Johnson's case. This, I accept, was no fault of counsel for the TAFE, who only became aware of the documents when conferring with Mr Brittle shortly prior to him giving evidence.

251 Over the objection of senior counsel for Mr Johnson, I admitted Mr Brittle's evidence on this issue. In my view, it was in the interests of justice to permit this evidence to be adduced. It went directly to the question of Mr Johnson's capacity to identify bullying and report it to the TAFE, as well as to his credit as a witness.

252 Senior counsel for the TAFE was content for me to treat the reports of those doctors as if the events would not have adversely affected their opinion of Mr Johnson.[230] Senior counsel said:

What I am saying is it can't improve their view of [Mr Johnson], it can only impact upon their views of him in an adverse way to his case and I am content, on behalf of the defendant, to say work on the basis that this wouldn't have detracted from their opinions.

253 I gave senior counsel for Mr Johnson the opportunity to lead further evidence from the three doctors on this issue. He declined my invitation and he elected to 'go on with the evidence as it is'[231] on the basis of the concession made by senior counsel for the TAFE.

Mr Johnson's general psychological state: Dr Verhoef's evidence

254 I will, in the course of analysing each of the alleged bullying incidents, refer to some aspects of Dr Verhoef's evidence. I regard the contemporaneous notes of Dr Verhoef as critical to the fact finding exercise on this part of Mr Johnson's claim, particularly given my reservations about Mr Johnson's credibility. It is helpful, I think, to have an overview of the doctor's written notes at the outset.

255 Between November 1995 and February 2005, Dr Verhoef's notes record several instances where Mr Johnson complained about 'stress' or 'problems' at work.

Stress. Tearful and stressed regarding work mainly plus recurrent chest infection[232]

257 Dr Verhoef was asked by counsel for the TAFE about a subsequent entry in 1995 in the following exchange:

'query hyperventilation syndrome'. What's that? --- It's hyperventilation that causes tingling and light-headedness due to stress.

You have got: 'Acknowledges stress symptoms. Discussion re stress et cetera'? --- Yes.

Do you have a memory of what the causes of stress were then? --- There is a mention at time of the work environment.

And at times other things? --- I am not sure if there were other factors there.[233]

Much happier at work after seeing work psychologist. Problems again at school. Many things going wrong. Can see it but can't fix it because of the system. Depressed, stressed. Overeating. Weight gain.[234]

259 As already mentioned, Dr Verhoef prescribed Zoloft on 13 May 1998, when Mr Johnson presented after an altercation with his previous supervisor. During the trial, Dr Verhoef said of this entry:

He sort of presented with flu symptoms and then he was going to work but then didn't. Had to travel slowly and arrived two minutes late and was blasted by employer. He remained calm and when he was finished said 'well, is that all?' But he didn't feel well and left, telling the supervisor he couldn't work, he was not well.'

Did you prescribe him medication?--- Some Zoloft, 100mg, half a tablet for one week and then review in two weeks.

Was there any repeat in that prescription or does that seem to be the only time your prescribed - - - ? --- He had ongoing prescriptions.[235]

260 On 30 October 2002, Dr Verhoef issued a certificate for two days off work due to stress after 'discussion regarding stress at work'.[236] \

261 The next mention of stress or problems at work is in July 2003. Dr Verhoef wrote a further prescription for Zoloft, noting:

Back pain doing 12 hours teaching per week. Can't do more because of back pain. Most of the work is computer work**. Manager at work is not happy with his teaching**...load...but doesn't seem to be concerned that he cannot do it. [237]

262 On 21 September 2004, 14 months later, the notes state:

Saw psychologist again and told her she seems to be pushing the employer's line. She apologised. They had further sessions and she called it quits. He doesn't need it. She says she has it well under control.[238]

Mr Johnson told Dr Verhoef that he ceased receiving counselling at this time.

263 The next mention of Mr Johnson's psychological state is on 11 February 2005, when Mr Johnson consulted Dr Verhoef after the failure to attend incident (discussed below). This is the first explicit reference to Mr Johnson being 'bullied' at work.[239] Counsel for Mr Johnson read the note:[240]

... on the previous Monday and Tuesday he felt unwell with painful, watery eyes, however he conscientiously went to work anyway. Wednesday he had a headache and would have been unable to work but fortuitously, it was a flexi day. By Thursday his headache had resolved but he felt light-headed and unsafe to drive to work. However, he proceeded to get himself ready for work, hoping he would feel better after breakfast and a shower. Unfortunately, he felt no better and therefore rang in sick. On the Friday he returned to work and was immediately confronted and bullied by his supervisor for not attending the previous day and putting people out. He then informed him there was no work for him today because others had been rostered to do his work, even though he had not rung in sick. He said that he broke down and cried when the supervisor continued to harass him. Then because there was nothing for him to do, he went home again. He said that they know he was having counselling over psychological issues surrounding his chronic pain and disability, yet they still treated him in this way.

264 Surprisingly, the certificate of capacity issued by Dr Verhoef at that appointment referred solely to Mr Johnson's back condition.

265 The first occasion on which a work conflict is mentioned in the certificates of capacity was on 24 March 2005 as a result of Mr Johnson consulting Dr Verhoef after the Good Friday incident.

266 Dr Verhoef referred Mr Johnson to a psychologist, and issued certificates of capacity, which read as follows:

Chronic low back pain due to nature of work, radiating down left leg. Consistent with chronic soft tissue injury. Secondary depression, aggravation/depression/anxiety due to inappropriate attitude of people at work (Project Manager).[241]

267 There were in fact two certificates of capacity issued in respect of the same consultation. The first stated that Mr Johnson was fit for modified duties until 29 April, whereas the second one declared that Mr Johnson was unfit for any duties until 3 April and further that he was:

... off work due to depression and anxiety due to situation which developed at work on 22-3-05 with Project Manager.

268 Four further certificates issued between April and July 2005 (on 8 April, 16 May, 1 June and 18 July) refer specifically to aggravated depression and an 'altercation' with a supervisor at work.

269 One of the certificates notes that Mr Johnson is to be referred to a psychologist and that Mr Johnson is to be given two weeks off work.

270 Mr Johnson did not call evidence from the psychologists who may have treated him in mid-2003 or in 2005, but nothing was made of this by senior counsel for the TAFE.

271 One certificate in this group refers to the aggravation of the depression 'arising out of an altercation with his supervisor now settled by keeping distance'.[242]

272 After July 2005, the certificates of capacity refer only to secondary depression, which I take to be referrable to the back condition.

273 In my opinion, the evidence of Dr Verhoef (documentary and oral) is relevant in two ways: first, it demonstrates that Mr Johnson experienced work-related stress issues, including those arising out of interactions with supervisors, prior to 2003 (consistent with Mr Brittle's evidence); and second, that his complaints about feeling bullied at work by a manager are supported by Dr Verhoef's contemporaneous notes and certificates from March 2005 to July 2005.

274 I now set out my summary of the evidence and findings in relation to the various exchanges alleged to be examples of Mr Williams' bullying and harassing behaviour towards Mr Johnson.

275 When Mr Johnson first returned to work after the manual transmission incident, he says that he was not given 'any meaningful duties'.[243] He said that he occupied his time by doing other teachers' paperwork, marking their tests and entering data for them.[244] He said that he was just 'left sitting there' not working.[245]

276 This seems to be generally consistent with the development of the Return to Work plan which I have set out at [110]-[118]. It appears that Mr Johnson did little practical teaching work at this time and when he did so it was limited by his certificates of capacity.

277 Mr Johnson said that he first encountered Mr Williams' harassment during this period. He said that Mr Williams accosted him in the hallway and told him to get a better doctor and go off work until his back was fixed; adding:

I need three things from my teachers. The first, able to teach a class; the second, able to manage the records; and third, conduct practical workshop lessons... You are no use to me.[246]

278 Mr Johnson was upset by this remark. He said it made him feel devalued.[247] Mr Johnson went and spoke to Mr Brian Dunn in the Human Resources Department about the incident.[248] Mr Dunn told Mr Johnson that 'this is not how we do things here. I will have a talk with [Mr Williams].'[249] Mr Johnson did not complain to Mr McCollum, Mr Williams' supervisor.[250]

279 Mr Williams accepted that he may have listed what he needed from his teachers, but said that he 'definitely' did not tell Mr Johnson that he was no use to him.[251]

280 Mr Pincott said that he witnessed the incident, though he thought that it took place in the staff room.[252] He said that Mr Johnson was 'stunned' and observed some tears in his eyes.[253] He also said that Mr Williams repeated the remarks when Mr Johnson was not present. [254]

281 Around this time Mr Johnson returned to Dr Verhoef. Dr Verhoef reported that 'Mr Johnson had been suffering considerable depression over the time of his back injury and, at this point it was felt appropriate to commence anti-depressants in the form of Zoloft 100mg daily'.[255] As set out above at [261], in Dr Verhoef's clinical notes, there is reference to 'the manager at work' not being happy with Mr Johnson's teaching.

282 Mr Johnson continued to carry out the theory component of his teaching but not the practical work, which was carried out by other teachers.[256]

283 I have no doubt that Mr Williams did speak to Mr Johnson about requirements for his teaching staff. I also accept Mr Johnson was sufficiently concerned to mention this to Dr Verhoef. I do not accept Mr Pincott's evidence about Mr Johnson's reaction. Nor do I accept that Mr Williams said Mr Johnson was 'no use' to him. Mr Williams was at pains in the course of his evidence to emphasise that he regarded Mr Johnson as an integral part of the team and such an expression is inconsistent with this attitude.

284 This incident was no more than Mr Williams voicing management's views about the requirements for teachers in the Automotive Department. I do not accept that this incident involved bullying or harassment.

285 In mid-2003, it was arranged that a motor mechanics teaching group would travel to Warrnambool, and then to the Little Desert Lodge in the Wimmera, for syllabus writing.

286 Mr Johnson spoke to Mr Williams about his inability to physically manage the trip owing to his back and neck pain. He said 'I am not going' and, 'it's just not on', and told Mr Williams that if he did go, he would probably end up in hospital.[257] In response to Mr Johnson's concerns, Mr Williams ordered a 21-seater bus rather than a 12-seater bus so that Mr Johnson could lay down at the back of the bus, or walk up and down the passageway as necessary.

287 Despite the measures taken by Mr Williams in response to Mr Johnson's concerns, Mr Johnson refused to attend the trip. Mr Johnson said that Mr Williams' response was that Mr Johnson was 'letting the team down'.[258]

288 Mr Williams denied making those comments.[259] He said that he was not critical of Mr Johnson, but rather disappointed that Mr Johnson could not attend as he was a very experienced teacher.

289 Even if one accepted Mr Johnson's account, there is no element of bullying or harassment in this episode. It was an expression of frustration by Mr Williams at Mr Johnson's inability to attend the seminar. I regard this allegation of bullying as another illustration of Mr Johnson's propensity to treat any negative interaction with Mr Williams as a personal attack.

290 According to Mr Johnson, in the early part of 2004, he was still teaching theoretical aspects of motor mechanics, but not the practical aspects of the course which fell to other teachers in the Automotive Department. I am not sure that this is accurate: I have set out the sequence of events at [110]-[119]. The return to work plan prepared by Dr Fish had been implemented by this time and Dr Verhoef's certificates of capacity meant that Mr Johnson could carry out all tasks as long as he avoided certain duties (i.e. those involving lifting over 10kg). The WorkCover history identified by Mr Williams is consistent with a return to practical work with restrictions by, at the [260]est, the end of 2003.260 I accept that Mr William's document accurately reflects the work carried out by Mr Johnson over this period.

291 In any event, Mr Johnson said that Mr Williams approached him and told him that people were sick of hearing him talk about his back and that they were unhappy that they had to carry his workload.[261]

292 Mr Williams denied that he said that to Mr Johnson[262] and reinforced this by stating that Mr Johnson 'didn't make too many comments to me about the condition'.[263]

293 Mr Johnson said that as a result of Mr Williams' comments he was determined to isolate himself from the other staff and would not talk or mix with them other than when it related to work.[264]

294 It is difficult to reconcile these conflicting versions with the evidence of Mr Streader (who supports Mr Johnson's account) and Mr Brittle (who supports Mr Williams' version of events). Ultimately, I prefer Mr Brittle, who worked closely with Mr Johnson and was the most impressive of the other witnesses. Further, Mr Streader did not mention this event in his 2004 affidavit.

295 Mr Johnson alleges that in mid-2004 he returned to his usual duties despite being on a light work certificate of capacity. He said that he was assigned to the engine overhauls, manual transmissions and automatic transmissions modules. As mentioned earlier, these modules involved an occasional element of moderate to heavy work.[265]

296 Mr Johnson went to see Mr Williams in his office to discuss his concern that he might injure himself again as a result of the work schedule change. Mr Johnson said that he was simply ignored, as he was a few days later when he again approached Mr Williams about the change in work schedule. Mr Williams denied ignoring Mr Johnson.[266]

297 Mr Johnson said of his psychological state that being ignored was not 'earth shattering', but that his stress levels were getting quite high because he was frightened of hurting his back again.[267]

298 I do not accept Mr Johnson's account in light of Mr Williams' denial. I accept that Mr Williams was unlikely to intentionally ignore Mr Johnson.

299 By the end of 2004, Mr Johnson had been on light duties certificates for about 18 months. He was asked by the Human Resources Department to attend a meeting with a WorkCover case worker at which his employment status was to be discussed. On Mr Johnson's account, Mr Williams was present but there was no representative from the Human Resources Department at the meeting. According to Mr Johnson, he was 'bluntly told that [his] back was classified as permanently incapacitated'.[268] He was offered an alternative job (presumably with less physically demanding duties) and was told if he did not accept it, his entitlement to compensation would be at risk.[269] Mr Johnson found the news, and the blunt way in which it was delivered, 'demoralising'.[270]

300 Mr Williams could not recall the meeting.[271]

301 Mr Johnson said that he complained to the manager of Human Resources, Mr Shevlin, about the Human Resources Department's failure to attend the meeting and also about the uncertainty of his new job. Mr Johnson said that the meeting upset him and added to his stress levels and that by that stage, he was 'just starting to feel lost in the system'.[272] Mr Johnson expressed his concerns in an email dated 7 December 2004 which I set out at [50].

302 While Mr Johnson did not rely upon the WorkCover meeting as part of his bullying case, it is relevant as it reveals Mr Johnson's attitude to management and in particular, Mr Williams. The email, which I have set out at [50], is of particular significance: it demonstrates the deterioration of Mr Johnson's relationship with management at the TAFE, not as a result of bullying, but by reason of Mr Johnson's anger at the perceived injustices of management's handling of his injury and its effects on his work.

I want to go to the time, say, from about 2003 on, when he was reporting a bad back and producing medical certificates from time to time. Can you say what your observations of him were at around this time?---I had noticed a change in his presentation.

What was that?---Rob appeared to lose some confidence. He was not positive about a possible return to work because of his injury. I understand that he was perhaps becoming a bit reclusive in his life. These were based on the occasions he delivered medical certificates to me. I would engage him in conversation.

Did you have discussions with him about his progress from time to time?---I believe I would have.

Do you are him ever making any complaints to you about Mr Williams at that time?---No, I don't.

If he had, do you believe he would remember it?---I believe I would have remembered it, yes.[273]

The failure to attend incident: February 2005

304 This incident occurred in circumstances where Mr Johnson had a rostered day off on a Wednesday, but was due to go to work on the Thursday. Owing to what he described as feeling 'extremely light headed and giddy' on the Thursday morning,[274] he could not attend the TAFE and so he telephoned that morning and said that he would not be coming in.

305 On the Friday, he returned to work and was approached by Mr Williams, who Mr Johnson said was clearly angry that he had failed to call Mr Williams on the Wednesday night to explain that he would not be in on the Thursday.

306 Mr Johnson said that Mr Williams told him that he could not trust him, and that he should go home because he brought another teacher in to replace him for the day.[275] He said that Mr Williams was actually 'badgering' him.[276] Mr Johnson said that he felt that he was being treated unjustly.

307 The discussion took place in the staff room with other teachers within earshot. Mr Johnson said that Mr Williams was aggressive and the interaction made Mr Johnson angry and caused his stress levels to rise. Mr Johnson reported the incident to Dr Verhoef on 11 February, who recorded it in his clinical notes, which I have set out at [[](#_Ref40581907 > Rod Williams blasted him and said, "Why didn't you give me notice? We can't find a teacher in the short time that you have given me notice", pretty much said it was deplorable and "You're letting us down... [Mr Williams] raised his voice quite loud and there were other staff in the staff room and it was just - yes, his body language. He is a big man. He actually projected his body and he was quite red in the face and quite angry... He just, you know, kept saying to him, "You need to let me know if you are not going to make it in, otherwise don't show...it was more upsetting for Robbie and he was quite tearful.[279]

309 I have significant reservations as to Mr Streader's account of this incident, not least because it was not mentioned in his affidavit sworn in 2011 (which identified only one incident of bullying, the March in-service meeting incident).[280]

310 Mr Streader did not quibble with Mr Williams' criticism of Mr Johnson for giving late notice - his issue was with the way in which Mr Williams delivered the message.[281]

311 In cross-examination, Mr Williams denied that he was angry and aggressive towards Mr Johnson. Instead, he said that he was 'disappointed' and painted a picture of a calm and considered interaction.[282] He said:

I definitely wasn't aggressive. I was very disappointed in Robbie because - quite obviously because he had rung in at ten to eight and Robbie lived almost an hour away... I wouldn't have been aggressive with him. I was possibly assertive and I was disappointed in that he had left it so late which would have a roll-on effect for the other staff members and the students.[283]

...

If I normally have a conversation with our staff member where there is a delicate matter to be discussed, I normally discuss it in a calm and rational manner.[284]

...

I was being assertive in explaining to Robbie exactly what was the issue and the problem, that he called in late. Nothing more than that. I wasn't trying to abuse him or belittle him or ridicule him.[285]

...

I didn't roar him out, I didn't abuse him or anything like that at all.[286]

312 Mr Williams also denied saying that he could not trust Mr Johnson.

313 I have no doubt that Mr Johnson was given a stern warning by Mr Williams for failing to give sufficient notice of his absence. I cannot say whether it was as strident as Mr Johnson and Mr Streader say, but I do not accept that it was a mild rebuff. Even accepting that it was critical and delivered in forceful tones, I nevertheless do not consider that the situation amounted to bullying or harassment. It was not unreasonable to forcefully reprimand Mr Johnson in the circumstances (and there is nothing to suggest that Mr Williams' behaviour amounted to a severely disproportionate reaction).

314 On 22 March 2005, another issue arose between the two men. It was the week of Good Friday. Mr Johnson was concerned that he would not be able to finish the week's work in only four days owing to another teacher falling behind. He approached Mr Williams in the staff room to discuss a contingency plan. Mr Johnson set out some possible options if he was not able to finish the week's work. On his account, the conversation was as follows:

Mr Williams: Why won't you get it finished?

Mr Johnson: Look we are behind and I am concerned that we won't get it finished.

Mr Williams: If I was teaching it I would get it finished. Do you want me to replace you with someone else who can get it finished?

Mr Johnson: Where are you going with this?

Mr Williams: I suppose you won't even turn up Thursday.

315 Mr Johnson said that he snapped as at this point his stress levels were 'through the roof'.[287] He was angry because he did not consider that it was his fault that the work would not get done. The confrontation continued with Mr Johnson walking up to Mr Williams and saying:

Mr Johnson: This shit has got to stop.

Mr Williams: Do you want to go outside and discuss this?

Mr Johnson: Stick it up your jumper.

316 Mr Johnson told Mr Williams that he was going to make a complaint against him which he said he did by informing Mr McCollum.[288] According to Mr Johnson, Mr McCollum told Mr Johnson to put the complaint in writing and to give it to Human Resources.[289]

317 Mr Johnson said that when he returned to the TAFE after approximately three weeks off (to which I shall return in a moment), he approached Mr Williams and offered to not to press the complaint against him if Mr Williams did not make a complaint about Mr Johnson swearing at him. He said Mr Williams agreed to this and that they shook hands.[290]

318 This evidence is at odds with Mr Williams' evidence, who said they did not shake hands or reach any agreement. He was surprised that Mr Johnson swore at him and said he felt 'intimidated' by the interaction.[291]

319 In an email sent to management shortly after the incident, Mr Williams says the following of the incident:

I questioned Robert, and asked whether there was anything that I could do to assist him in meeting the objective within the allocated time and not disadvantaging the students. Robert asked me what would happen if he didn't finish on time. I asked, 'Was there any reason why he thought he wouldn't finish on time'.

Robert Johnson then became very aggressive towards me and raised his voice, verbally abusing me. He said "that he was sick of all this and that it was all my ['Rob Williams'] fault. I asked Robert to calm down and act in a professional manner. I also asked if Robert would prefer to discuss the meeting further in private as other staff members were witnessing his outburst. He declined, I started to feel Robert Johnson was trying to intimidate me in front of Adrian Lea and Craig Reaks for some unknown reason.

I resent this form of abuse and intimidatory tactics that Robert Johnson chose to cast upon me at that particular time. I feel it is not only an unwarranted attack on me personally, but an affront to the other team members that were present at the time.[292]

320 The email constituted Mr Williams' formal complaint about Mr Johnson's behaviour.[293]

321 In around August 2005, Mr Williams sought out Ms Hunt to enquire about the delay with which his complaint was being investigated. Ms Hunt made notes of the meeting,[294] and said that she would speak with Mr Johnson about the incident. There was no mention by Mr Williams of any deal.

322 Ms Hunt then wrote to Mr Johnson seeking a meeting, which Mr Johnson failed to attend. A meeting between Ms Hunt and Mr Johnson eventually took place in late 2005.[295] Ms Hunt recalled that at the meeting Mr Johnson discussed the issues leading to his outburst, but she could not recall the exact specifics. She said that he mentioned depression and personal issues but did not complain about bullying in the workplace. Ms Hunt considered that if he did, she would have remembered this because it was her job to deal with such issues.[296] Ms Hunt did recall that he raised other issues regarding work such as his hours.[297] Ms Hunt could also not recall Mr Johnson mentioning the alleged agreement with Mr Williams not to complain about each other.

323 Mr Johnson disputed her account and said that he raised with Ms Hunt his desire to make a complaint against Mr Williams which wasn't accepted by Ms Hunt, who was closing the file.[298] Mr Johnson said that he then started to cry.[299]

324 Ms Hunt met with Mr Johnson again in February 2005. She believes that she gave Mr Johnson a letter which in effect, set out her findings as to his behaviour.[300] Ms Hunt found that the incident had occurred and that Mr Johnson's behaviour at the time was inappropriate and not to be repeated. Mr Johnson said that he was in tears when he read the letter.[301]

325 I reject Mr Johnson's account of his 'agreement' with Mr Williams and his version of conversations with Ms Hunt. I have no doubt that if such a deal had been done with Mr Williams, he would, both in writing and orally, have told Ms Hunt (and Mr Shevlin, particularly in light of the correspondence that ensued in late 2005 and 2006).

326 Ms Hunt was an impressive and apparently unbiased witness (indeed, at times her evidence assisted Mr Johnson's case). Her version is supported by the paper trail. In my opinion it is singular that Mr Johnson did not tell Ms Hunt that the issue had been resolved by agreement, nor did he mention any bullying by Mr Williams. Moreover, Ms Hunt said, and I accept, that Mr Williams expressed satisfaction at this time with Mr Johnson's work.

327 It is quite bizarre that Mr Johnson treats this episode as an instance of bullying. On his own description, he was the provocateur of the incident and, in my opinion, has reconstructed or misportrayed events to suit his misguided perceptions of how those events came to pass.

328 Notwithstanding my rejection of Mr Johnson's evidence as to what occurred, there is one point which is clear: the interaction produced a major psychological reaction from Mr Johnson, and led to his absence from work for (at least) three weeks and resulted in his referral to a psychologist.[302]

329 In relation to Mr Johnson's absence from work, I repeat that Dr Verhoef completed five certificates of capacity which mentioned altercations or inappropriate attitudes of the manager which were provided to the TAFE between April and July 2005.

330 Mr Johnson was absent from work for three weeks (returning after 15 April) and then sporadically during the period to July 2005.

331 There was no dispute that Dr Verhoef's certificates of capacity were provided to the TAFE.

332 Around the time of the Good Friday incident (it is impossible to identify precisely when), another issue between the two men arose at an in-house training session. Mr Johnson says that he asked Mr Williams to clarify something in a paper that Mr Williams had distributed. Mr Williams responded by telling Mr Johnson to 'get your thinking out of the 80s. This is how we do things now'.[303]

333 Mr Williams denied making this comment.[304] Mr Johnson said that he complained about the incident to Mr Brittle, who suggested that he meet with Mr Williams to discuss it.[305] Mr Brittle did not recall Mr Johnson complaining to him about Mr Williams at any time.[306]

334 As the incident is not corroborated and is denied by Mr Williams, it is difficult to conclude one way or the other whether the comment was made by Mr Williams. Even if the comment was made, strange as it is, I am not satisfied that it constitutes behaviour which amounts to bullying or harassment. It is not belittling or demeaning; rather, it is the sort of statement an employee may make.

335 After the incident, Mr Johnson said that he sought out a meeting with Mr Williams. He said that after he closed the door he was met with a verbal tirade from Mr Williams telling him that he was a whinger, that he lacked commitment and that he was not a team player. Mr Johnson said that in this meeting he explained that he was experiencing difficulty performing tasks that he could do easily before. He broke down crying.[307]

336 Mr Williams remembered Mr Johnson crying at a meeting between the two but said that Mr Johnson (not Mr Williams) told him that his teaching career was coming to an end.[308] This was the only occasion on which Mr Williams remembered Mr Johnson crying during their many interactions.[309]

337 I reject Mr Johnson's account of what was said at their meeting after the incident. I think it is far more plausible that Mr Williams' account is correct. Whilst I think that the relationship between the two continued to deteriorate, Mr Williams' account tallies in some respects with what Mr Johnson told Mr Brittle prior to the back injury - Mr Johnson was not enjoying his work and was looking forward to getting out. The effects of the back injury compounded that belief. Mr Johnson's answers to the questionnaire and his patent dissatisfaction with his work situation demonstrate his ongoing concerns about his career.

338 There was no bullying or harassment involved in this episode.

339 In re-examination, Mr Streader gave evidence of an occasion where Mr Williams approached Mr Johnson to give him advice. He said that Mr Johnson was at his desk and that Mr Williams grabbed a chair and pushed it towards Mr Johnson's area telling Mr Johnson that he needed to change. He said things such as 'You need to change, mate. You need to move forward and get a grip of yourself. You need to forget the past and move on'.[310] Mr Streader said that Mr Johnson was at his desk in staffroom in tears listening to the advice and that four or five other people were present.[311] Mr Williams spoke for about 10 minutes and Mr Johnson was 'speechless'.[312]

340 It is not clear whether Mr Streader was referring to the meeting between Mr Williams and Mr Johnson following the in-house training incident above, or their interaction at the March in-service meeting incident discussed below, or another separate event. Given that Mr Streader puts the incident in the staffroom where other people could witness it, I think that it is more likely that he is referring to a separate incident altogether.

341 Senior counsel for Mr Johnson put the allegations to Mr Williams but Mr Williams 'was not really sure' to which incident he was referring.[313] Essentially, Mr Williams could not recall the incident described by Mr Streader.[314]

342 I am not satisfied as to the accuracy of Mr Streader's account - it emerged in re-examination and was not referred to in evidence-in-chief or in Mr Streader's 2011 affidavit. In any event, I think it far more likely (as Mr Streader accepted) that this was simply a conversation between the two and not part of a regime of bullying and harassment by Mr Williams.[315]

343 In around November 2005 Mr Johnson left a classroom of students unattended in order to find out whether a staff meeting was taking place. On his return, he discovered that a student had accessed a test paper on his computer and was projecting the paper for the class to see. Mr Johnson left the classroom again and asked Mr Williams to help him deal with the incident. Mr Williams arrived and asked the culprit to come forward, which he eventually did.[316]

344 To Mr Johnson's chagrin, Mr Williams wanted to interview the students in a meeting room and Mr Johnson was asked to collect them one at a time. He sat in during some of the interviews. Mr Johnson felt that Mr Williams was dealing with the students inappropriately, and in particular was interrogating them. During the course of one interview, Mr Williams endeavoured to search the student's bag, at which point Mr Johnson felt that he could no longer put up with the behaviour and told Mr Williams to stop.

345 Mr Williams agreed that he questioned the students to find out how much information they had acquired.[317] Mr Williams said that he was assertive, but not aggressive[318] in interrogating each student. He treated the matter seriously. It was, in Mr Williams' view, a breach of security and he wanted to get to the bottom of it, although he could not remember asking to search a student's bag.

346 Mr Johnson stated that he felt particularly aggrieved by this incident. He said: [319]

When I saw the same stress that I was experiencing being forced on to these students, the way he was questioning them, I had empathy with the students, the way they were being dealt with. I didn't care if they were guilty; the way they were being talked at was wrong.

347 From this period and leading into the early part of 2006, Mr Johnson thought that his psychological condition deteriorated. He described it as 'rock bottom'[320] and said:

I was not concentrating properly, I was having great difficulty doing things. I didn't want to be [at school], that's how bad it got. It was an effort to go to work. I felt very down.

348 There was no element of bullying or harassment in this incident. Mr Williams was doing his job - whatever the views that Mr Johnson held as to how Mr Williams handled the situation, he was not bullying Mr Johnson. Dissatisfaction with a superior's handling of a student hardly falls into this category.

349 Again, I regard this complaint as typical of Mr Johnson's propensity to identify any incident he can recall which caused him stress involving Mr Williams as constituting bullying.

350 However, I accept that this episode was another blow to Mr Johnson's psyche and confidence, particularly as it reinforced his critical view of any aspect of Mr Williams' conduct.

351 On 23 February, Mr Johnson was carrying out a student roll call. One student (the student involved in the student cheating incident) was facing away from Mr Johnson on his mobile phone with his feet up on the desk. Mr Johnson asked the student to turn around and put his phone away. The student ignored his request, forcing Mr Johnson to repeat it loudly. The student turned around and replied 'things happen to people who threaten me'. Mr Johnson told him that he was not threatening and added that 'there are consequences to your actions'.[321]

352 Mr Johnson continued to teach the class as normal, but while he was packing up material during lunchtime he began feeling angry. He thought 'the amount of time I spend helping all these different students and this is how you get treated.'[322] He walked back to the staff room and began swearing loudly. He said of this incident:

I was upset. I felt like I was outside myself, coming alongside of me there, watching a person really having an argument about 'you bastards' and this sort of stuff 'I have done all these things and this is how things are going'.[323]

353 On Mr Johnson's account, he went directly to his desk in the staff room and began documenting what occurred in the classroom. Mr Johnson then told Mr Williams what occurred and began crying uncontrollably. Mr Williams said that they needed to confront the student but Mr Johnson did not feel comfortable doing so. He was shaking.

354 Mr Johnson's account as to his reaction is confirmed by Ms Hunt, who was called to the Automotive Department and asked to speak to Mr Johnson. She said that he was 'very, very upset' about what happened and apologetic about his reaction to the student.[324] She was concerned for him and decided that he was in no condition to remain at the TAFE that day. Mr Johnson went home later that afternoon.[325]

355 Curiously, Mr Williams, who remembered the occurrence of the event, did not recall Mr Johnson being upset after the incident or Ms Hunt's involvement. Mr Williams said that he assumed Mr Johnson had gone home because he was not feeling well.[326]

356 The next day Mr Johnson saw Dr Verhoef, who certified him unfit for any duties. In his notes, Dr Verhoef recorded:

Work: stress building for some time. Manager ... headaches. "pressure" backpain low level contact. Incident with student and mobile phone.[327]

357 Senior counsel for Mr Johnson asked Dr Verhoef about the consultation (and also about the subsequent consultation on 16 March 2006):

Then on 24 February 2006 do you have a note that he said the pressure was gradually building at work. He had been suffering headaches for three weeks. There was a feeling of pressure in his head and he had constant low level back pain. You had a note he was attending the work counsellor again who subsequently reported that she was concerned by his unhappiness. That he needed time off work and was given a certificate for one week?---Yes.

358 Overall, Mr Johnson was off work on the basis of general medical certificates (and not certificates of capacity), for three weeks.[328]

359 As with the student cheating incident, this incident is not one of bullying and harassment. There was no suggestion that Mr Williams had harassed or belittled Mr Johnson and there was no complaint by Mr Johnson to Ms Hunt about Mr Williams' conduct.

360 I am satisfied that this incident resulted in a major psychological upset to Mr Johnson, and that in Mr Johnson's mind, this was another example of management ineptitude which reinforced his antipathy towards Mr Williams.

361 After a three week absence following the things happen incident, Mr Johnson returned to work on Monday 13 March. The following day, the Automotive Department conducted an in-service meeting for its staff in the conference room, under the leadership of Mr Williams.

362 Mr Streader, who remembered the in-service meeting 'quite distinctly', said that for some reason, a meeting about the team soon 'swung to [being about] Robbie'.[329]

363 Mr Johnson's account was that at the meeting Mr Williams 'lashed out' at him.[330] He said

It was sort of a bit strange but basically, Rod Williams got up and was speaking and words to the effect that I was not performing were mentioned in his speech and all I know is I very quickly became upset and started crying and I was not really listening from that point to what he was saying but he was continuing... he did mention that I was not really contributing or something in those words to that effect.[331]

364 At the point that Mr Johnson began crying, Mr Streader told Mr Williams 'This has to stop'.[332] Mr Streader said that Mr Johnson

was in a state of crying and hunched over and deflated and jut intimidated by the people asking the questions. That's why I asked to put a stop to it, because I could just see that it wasn't healthy. It seemed like everything was focused on Robbie and yet, this was about a team by our department...

365 Mr Streader said it probably went on for about ten minutes before he put a stop to it.[333] This account is consistent with the episode in Mr Streader's 2011 affidavit.[334]

366 Mr Williams could not recall Mr Johnson breaking down at the in-service meeting and could not recall turning on him there nor Mr Streader having to intervene.[335]

367 Senior counsel for Mr Johnson asked Dr Verhoef about his consultation on 16 March 2006. The exchange was as follows:

Did you have a note of 16 March 2006 that: "Mr Johnson returned to work two days ago. He said it was very difficult emotionally and psychologically. He hadn't slept at all the night before and was unable to remain at work and left after an hour. He had aggravated his back a week before whilst pulling on his socks. He was sweating, he was stressing out. He was not enjoying work at all. He was to continue with counselling and was given another week off work?---Yes.

368 I am surprised that Mr Williams cannot recall this episode which required the intervention of Mr Streader. On this issue only, I accept Mr Johnson's account, which is corroborated by Mr Streader and specifically mentioned in his affidavit of October 2011.

369 After the March in-service meeting, Mr Johnson took further time off work. He was certified as unfit to attend work on 15 March 2006 by Dr Verhoef, and ultimately returned to work on 26 March.

370 According to Mr Johnson, upon his return work, Mr McCollum asked him at morning tea whether he had the appropriate certificates in relation to returning to work. Mr Johnson was not sure what Mr McCollum was asking for. Mr McCollum said 'you are not supposed to be on the premises without that'.[336] Mr Johnson contacted the Human Resources Department to clarify the situation and to organise a standby teacher. He left work at 4pm on that day 'utterly shattered'. Mr Johnson has not returned to any form of work since that day.[337]

371 Evidence as to Mr Johnson's psychiatric condition was provided by:

372 Of these, I regard Dr Verhoef's opinion as the most influential, as it was based upon contemporaneous accounts of events given by Mr Johnson. I am also of the view that Dr Strauss in his reports has identified what was obvious by the end of the trial: Mr Johnson is a complex man who has long-standing psychological issues which were going to affect him with or without his difficulties with Mr Williams.

373 Dr Verhoef gave viva voce evidence and eight of his reports were tendered into evidence.[338]

374 Dr Verhoef's opinion of Mr Johnson's psychiatric condition is set out in his report of 2 December 2008, which was unchanged in his subsequent reports, and maintained at trial. reads as follows:[339]

[Mr Johnson's] attempts to rehabilitate back into full time usual work activities have been frustrated at every turn by, what he perceived as the insensitive and unsupportive attitude and manner of his supervisors at work. He eventually came to characterise this as harassment.

The effect on his psychological health has been such that he is not able to return to his present place of employment...

In my opinion, Mr Johnson is permanently and completely disabled both physically and especially psychologically for work in any capacity as a result of his work injury and the psychological ramifications of his injury.

In his report of 7 April 2009, Dr Verhoef refers to Mr Johnson as suffering from 'Depressive Disorder and Panic Disorder'.

375 Dr Pastore, a clinical psychologist, treated Mr Johnson from April 2008 until 2010. Five of his reports were tendered at trial.[340]

376 The earliest of Dr Pastore's reports, dated 14 July 2008, related Mr Johnson's psychological condition solely to the things happen incident.

377 Senior counsel for the TAFE sought to demonstrate that the attribution by Dr Pastore of Mr Johnson's psychological condition to bullying must have been an afterthought on Dr Pastore's part.[341] I think that there is some force in this proposition given the contents of Dr Pastore's first four reports.

378 The one miniscule reference that Dr Pastore could find of Mr Johnson's complaints about bullying (although not identified) are referred to in the summary of the first report, which states that Mr Johnson 'was working well at Box Hill TAFE until a number of incidents left him psychologically unfit to work'.[342]

379 The first time that any details of the bullying and harassment alleged by Mr Johnson emerge is in Dr Pastore's final report dated 23 August 2014, which states:

Psychological Injury - History

The history is well documented in an affidavit sworn 31.08.2009 by Mr Johnson so will not repeat it all here. Suffice to say that Mr. Johnson alleges that he was:

• In a lecture was "put down" in front of work colleagues and humiliated.
• Was told that he was a "winger", "a non team player" as part of a tirade in a meeting that Mr. Johnson attended.
• Was subjected to undue criticism on an on-going basis.

I do recall the patient telling me about the incidents that I have referred in his affidavit, in terms of my last report.[343]

... I do recall the badgering, the sick thing, the group - I think it was an in-service and the constant put downs like 'stop whingeing about your back. You are not a team player'. I do recall those things having been mentioned.[344]

If you are talking about my treatment of him and what I was treating him for and what was in the report, yes, there is a discrepancy but if you are asking me what I was treating him for, I am telling the court that I was treating him for the incidences that occurred in his affidavit. [345]

382 The report of 23 August 2014 goes on to conclude:

Mr Johnson continues to experience a mild to moderate degree of maladaptive behaviour patterns aimed at controlling his anxiety. He has experienced disturbing traumatic events in the past in relation to the harassment and bullying he has experienced in the workplace and it is these events that continues to distress him and produce recurrent episodes of anxiety.

...

Mr Johnson is still suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. His condition has not really changed much since my last assessment and I would now say that his psychological condition has definitely stabilised.

In the past Mr. Johnson made no pretence that he did have some limited capacity to work, perhaps as a teacher with physical restrictions that did not require him to lift anything of any significance and as long as the work did not require him to supervise anyone.

However, in his present condition, from a psychological point of view, he is not in any position to reconsider employment. He mental status is fragile and it would take a relatively minor stressor to decompensate him further. [sic]

When you overlay his psychological condition, and his limited physical ability now, and consider his limited work experience, his chances of finding employment is actually quite remote. Mr. Johnson's age is also a barrier to his eventual return to work. He has limited transferable skills, and would not be a good candidate for re-education given his psychological condition. As I have stated previously, I do not think he could survive well in an environment with "normal" stressors and a further relapse would be inevitable with further psychological repercussions.[346]

[sic]

383 Given the contents of Dr Pastore's earlier reports and clinical notes (and notwithstanding his answers in cross-examination), I have serious reservations as to whether anything of substance related to Mr Johnson's work, apart from the things happen incident, was mentioned by Mr Johnson to Dr Pastore prior to 2014 - the year of the trial.

384 Dr King, a consultant psychiatrist, saw Mr Johnson on 10 February 2010 and then again on 2 March 2011. Two reports in respect of those consultations were tendered.[347]

385 Dr King diagnosed Mr Johnson as suffering from 'Chronic Adjustment Disorder with Anxiety and Depressed Mood'. Dr King says that this developed '[a]fter injuring his back on a number of occasions, and then having the perception that he was repeatedly bullied and harassed by his manager'.[348] Interestingly, Dr King states that 'whether he was harassed or bullied at the workplace, is now not important. His perception is certainly that he was.'[349] This, it seems to me, identifies the real issue here. Whatever the reality of his work situation, Mr Johnson is convinced he was bullied by Mr Williams.

386 Dr King considered that Mr Johnson was not capable of returning to teaching in any capacity.[350]

387 Dr Strauss assessed Mr Johnson in December 2012 and then again in August 2014. Three of his reports were tendered at trial.[351] The history provided by Mr Johnson to Dr Strauss included the Good Friday incident, the things happen incident, and the March in-service meeting incident.[352] Dr Strauss said in his report dated 19 August 2014 that:

Mr Johnson believes that he was treated unfairly and unreasonably at work and he developed physical problems as a consequence of his work experience. It has been a combination of physical and psychological factors as far as he is concerned that caused him to cease work.

388 Dr Strauss diagnosed Mr Johnson as suffering from 'an underlying chronic mild adjustment disorder with mixed anxiety and depressed mood'.[353] However, given the conflicting versions of events expressed by Mr Johnson and Mr Williams, Dr Strauss was reluctant to say whether this psychiatric condition was caused by his experience at the TAFE.[354] Instead, Dr Strauss said that:

I have emphasised that [Mr Johnson] has a history of anxiety and depression which goes back a long way and I have stated that it is possible, particularly if he was not bullied or victimised at work, that his current psychological problems are simply longstanding psychological problems that would have affected him irrespective of employment.

389 Dr Strauss concluded that the chances of getting Mr Johnson back to work are quite small.[355]

390 Dr Kennedy examined Mr Johnson on 15 March 2010 and his report dated 24 March 2010 was tendered at trial.[356] Dr Kennedy was of the view that Mr Johnson's psychological condition had resolved. I suspect that he reached this conclusion as he found the task of obtaining a clear history from Mr Johnson was 'impossible'. Accordingly, I put his opinion to one side.

391 Whilst I am satisfied, on the basis of Dr Verhoef's contemporaneous documentation, that from early 2005 Mr Johnson believed that he was being bullied, there is a world of difference between Mr Johnson's perception and reality.

392 Notably, Dr Verhoef 's opinion in his report dated 2 December 2008, which I set out at [374], identified Mr Johnson's perception of the lack of support he received from his supervisors which he 'eventually came to characterise as harassm[357].'.357

393 Similarly, Dr King's view was that after injuring his back Mr Johnson developed 'the perception of being repeatedly bullied and harassed by [Mr Williams]'.[358] Dr King adds:

I would be very interested to read an independent account of this man's relationship with his manager Rob (sic) Williams over years, and as to whether he was bullied and harassed as he perceives.[359]

394 Further, Dr Strauss(who knew nothing of Mr Brittle's material) says:

I cannot really reach conclusions about whether or not this man was treated unfairly or unreasonably at work particularly as Mr Johnson has a history of symptoms of anxiety and depression which go back some years. Perhaps Mr Johnson has always been a highly strung man and because of personal factors and his personality, he found it harder and harder to cope with his job...[360]

... his perception of events at work may have been faulty because of his tendency to become anxious and depressed which is longstanding...[361]

395 Asked about the manner in which Mr Williams treated Mr Johnson after his back injury, Mr Brittle, whose evidence I accept, gave a revealing answer. He said 'there was certainly from Mr Johnson - Robbie - no emotional intelligence in relation to the impact on the team, which was great, in relation to his performance but everybody accepted it and worked around it and so did Mr Williams'.[362]

396 Mr Brittle's observation is consistent with the observation of Dr Strauss:

I suspect Mr Johnson has always had obsessional traits in his personality and he has lacked insight to a certain extent into his personality makeup. Perhaps he did not judge events very well in his last job and he upset himself because of his poor perception of circumstances.[363]

397 The objective facts and my findings do not support - and indeed, occasionally disprove - Mr Johnson's case that Mr Williams bullied and harassed him over a period of two and a half years. Rather they demonstrate that from the time of the Good Friday incident the relationship between the two men became increasingly tense. As I have mentioned on a couple of occasions earlier, by the time of final submissions, Mr Johnson's case had morphed to include a case based on 'conflict' between the two men.

398 I am also satisfied that Mr Johnson was a very difficult employee, resentful of authority, particularly when it affected his lifestyle and working hours. He is obsessive about the way he was treated by his superiors and I am satisfied that the smallest affront is viewed by him as an episode of bullying.

399 I repeat that I regard it as singular that Mr Johnson did not advise or report to Ms Hunt or Mr Shevlin his problems with Mr Williams. Ms Hunt was the obvious choice of a confidant, particularly after she emailed Mr Johnson to discuss Mr Williams' complaint about the Good Friday incident. That was the perfect opportunity to put allegations of bullying to management.

400 I do not regard the failure to call Mr McCollum and Mr Dunn (as submitted by counsel for Mr Johnson) as being of any real relevance. The case turns on the acceptance of Mr Johnson's allegations. For many reasons, as I have said, Mr Johnson was an unreliable witness and no Jones v Dunkel inference can buttress his failings as a witness.

401 Notwithstanding my findings as to the specific incidents, it is also necessary to sit back and see whether, looked at as a whole, Mr Williams' behaviour was sufficient to constitute harassment or bullying as defined at [211]-[212]. In my view, it was not. Whilst I think that it is possible that Mr Williams may at times have been insensitive to Mr Johnson's position, Mr Johnson was a difficult customer and his attitudes would have posed challenges for any manager. I am quite satisfied that Mr Williams did not set out to deliberately (or, for that matter, inadvertently) demean, belittle or harass Mr Johnson. That disposes the bullying and harassment allegation.

402 However, this conclusion as to the bullying and harassment aspect of the case does not fully resolve the proceeding. Mr Johnson's claim encompasses, in the broad, an allegation of breach by the TAFE of its duty of care to prevent him suffering psychological harm in the course of his employment. I now turn to that part of the case.

Did the TAFE owe a duty of care to Mr Johnson in relation to the psychiatric injury claim?

403 It is uncontroversial that, as an employer, the TAFE owed a duty of care to Mr Johnson, its employee. The question remains, however, whether the scope of its duty extended to protecting Mr Johnson from the risk of psychiatric injury as a consequence of his employment.

404 While I have rejected Mr Johnson's allegation that he was bullied and harassed by Mr Williams it does not follow that his claim fails. I reiterate that his case is founded on a psychiatric injury caused by his employer, the TAFE. It is therefore necessary to return to the principles (some of which are set out at [211]-[215]) and some of the evidence relevant to this part of the claim.

405 The decision in Koehler[364] is the leading authority on this issue.

406 For present purposes, the following principles can be extracted from Koehler:

(a) Where a proceeding is grounded in psychiatric injury arising out of the carrying out of work duties, careful analysis of the content of the duty of care is required before questions of breach are considered.[365]

(b) Reasonable foreseeability of psychiatric injury to the particular employee alone is not sufficient to enliven the duty of care.[366]

(c) Other relevant considerations as to whether a duty of care is enlivened include:

• the contract of employment and obligations arising from it;[367] and
• evident signs of an employee's inability to carry out work activities associated with the risk of psychiatric injury.[368]

(d) Absent those evident signs 'warning of the possibility of psychiatric injury', the employer is entitled to assume that the employee is capable of performing his or her job.[369]

407 In Taylor v Haileybury,[370] drawing on the judgment of Keane JA in Hegarty v Queensland Ambulance Service,[371] Beach J observed:

(a) First, in a negligence infliction of psychiatric injury case, the risk of injury may be less apparent than in cases of physical injury.

(b) Second, whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension.

(c) Thirdly, whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the psychical environment in which an employee works.

(d) Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attended the discharge of an employer's duty in this respect must be acknowledged as important considerations.

(e) Fifthly, the dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty that might be asserted by a plaintiff.

(f) Sixthly, issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating an employee's problems. [372]

408 Subsequently in Swan,[373] Dixon J said:

In the result in Taylor, Beach J identified a number of hallmarks of 'litigious hindsight' but the decision in that case turned on a careful examination of the terms and conditions of employment. The court concluded that while the plaintiff's workload was undoubtedly heavy, it was the job that he chose to do at the time he commenced his employment with the defendant and without the benefit of hindsight there was no reason for the defendant to suspect that the workload it required of the plaintiff placed him at any risk of psychiatric injury.

Although the general principles that are identified in these decisions are plainly those that must be applied in determining the content of the defendant's duty of care in the circumstances, there are material distinctions between stressful situations that are a consequence of accepted working conditions or work overload and those that are a consequence of unreasonable behaviour in the form of workplace bullying by a work colleague. The plaintiff did not choose to work with a bully, or work in stressful conditions arising other than from the nature and extent of the tasks that she agreed to perform. The plaintiff's complaints to the board were not about the onerous nature of the tasks. Her complaints suggested, and were understood as suggesting, her psychiatric health may have been at risk albeit that the complaints might also be suggesting an industrial relations type problem.[374]

409 Returning now to this case and my earlier findings, I repeat, in précis, those findings relevant to this aspect of the case.

410 The Good Friday incident was one of significance. It was triggered by Mr Johnson's volatile reaction to Mr Williams. Notwithstanding the rights or the wrongs of the confrontation between the two men, it is clear that Mr Johnson suffered a significant psychological reaction that put him off work for a number of weeks. It is also clear that over the following months (April through to July 2005) multiple certificates were issued by Dr Verhoef which alerted the TAFE to the fact that Mr Johnson was suffering from aggravation of depression due to his interactions with a supervisor.

411 In Larner v George Weston Foods Ltd,[375] the Court of Appeal held:

The factors that are most likely to be relevant in determining the content of the duty of care, and what is required of an employer to satisfy the duty of care it owes, include both the nature and extent of the work being done by the particular employee; 'and the signs from the employee concerned - whether in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic'.

An employee's agreement to perform those very duties which are later found to be a cause of psychiatric injury may be of considerable significance in determining whether an employer has breached its duty of care. As the High Court said:

An employer may not be liable for psychiatric injury to an employee brought about by the employee's performance of the duties originally stipulated in the contract of employment. In such a case, notions of 'overwork', 'excessive work' or the like have meaning only if they appeal to some external standard ... Insistence upon performance of a contract cannot be in breach of a duty of care.

An employer's obligations under a contract are not to be read subject to a duty to excuse performance if performance is injurious to psychological health, nor to be qualified by hindsight. In the absence of warning signs, an employer can assume that someone who enters into a contract of employment believes himself or herself to be capable of performing its duties...[376]

412 I am satisfied that the provision of the five certificates of capacity meets the Koehler requirement, as applied in Larner: The TAFE was placed on notice of the risk of a psychological injury arising out of Mr Johnson's employment - the 'evident signs', to use the words in Koehler, of an identifiable and recognisable psychiatric condition (depression) related directly to the relationship between two of its employees.

413 Mr Shevlin, the Executive Manager of the Human Resources Department, had no recollection of receiving the five certificates personally.[377] However he said that Mr Johnson would generally provide the certificates to him, or if not him, to others in the Human Resources Department.[378] I am satisfied that the certificates were received by members of that department. I accept that Mr Williams was not aware of the contents of the certificates, which appear to have been provided solely to Mr Shevlin's team.

414 After provision of the certificates, those responsible for the administration of the return-to-work program and the OH&S aspects of the TAFE (which included Mr Shevlin and Ms Hunt) should have been alerted to the ongoing issues between Mr Williams and Mr Johnson.

415 The certificates should have forewarned the TAFE that there was a risk of injury to Mr Johnson's psyche as a result of the Good Friday incident, which was the precipitating factor in the issuing of the five certificates.

416 It matters not for the purpose of this inquiry that Mr Johnson was the protagonist - what was important was that the relationship between the two men had broken down to the point where Mr Johnson was off work sick and his GP had identified a psychological disturbance related to that relationship.

417 By June 2005, there was a foreseeable risk of psychiatric injury to Mr Johnson arising out of his relationship with Mr Williams and that any confrontation between the two could give rise to further injury to Mr Johnson's mental state.

418 Given the fact that there were multiple certificates identifying depression related to Mr Johnson's relationship with Mr Williams, it was not plausible to regard the effects of the Good Friday incident as transitory.

419 So, in summary, by June 2005 the TAFE should have been aware that:

(a) there was a serious issue between Mr Johnson and Mr Williams;

(b) Mr Johnson was suffering from a psychological condition (identified as depression);

(c) the aggravation of Mr Johnson's depression was related to his work and particularly his relationship with Mr Williams; and

(d) it was likely that any further interaction (or confrontation) between the two would cause further injury to Mr Johnson's psyche.

420 I am satisfied that, in accordance with the principles stated in Koehler, the TAFE's duty of care was enlivened and that there was nothing in the contract of employment between the TAFE and Mr Johnson which precluded that duty of care. In addition, I am not persuaded that the type of considerations set out by Beach J in Taylor v Haileybury[379] are relevant here.

421 It follows from what I have said in relation to the existence and scope of the duty that there was a foreseeable risk of injury to Mr Johnson which was not 'farfetched or fanciful'. Therefore an assessment of the reasonableness of the TAFE's response is required.

422 For the purposes of the breach inquiry, the primary issue is determining what response a reasonable employer confronted with the identified foreseeable risk of injury would have been to that risk, and then discerning whether the employer fell short of that response.[380]

423 In Nationwide News Pty Ltd v Naidu,[381] Spigelman CJ said of the nature of the psychiatric injury inquiry:

The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.

...

The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.[382] (emphasis added)

424 In Brown the Court of Appeal said of this exercise in the context of a workplace psychiatric injury brought on by one employee's relationship with another employee:

The critical task [is] to identify the reasonable person's response to the foresight of the risk of occurrence of injury of the type which the plaintiff allegedly suffered...[383]

425 I should mention two other matters important to this inquiry.

426 First, in determining what is a reasonable response to a risk, one cannot rely too heavily on hindsight. The fact that a foreseeable risk has eventuated does not bespeak a lack of an adequate response. The reasonableness of a response must be evaluated in the context of the identified risk as it existed immediately prior to the subject injury.[384]

427 Second, it may be that notwithstanding the risk and availability of remedial measures, an employer acts reasonably by taking no steps.[385] Underpinning the analysis is a determination of what is reasonable in all the circumstances, not just the ticking of a number of boxes resulting in the conclusion that the employer has acted reasonably or unreasonably.[386]

428 As I have stated, the TAFE should have appreciated that there was a risk of psychological injury to Mr Johnson as a result of continuing friction with Mr Williams by June 2005. By this time the TAFE had received multiple certificates identifying Mr Johnson's depression attributable to the problems between the two men. The certificates were freely available, and retained by the Human Resources Department.

429 It follows that the critical question is whether the TAFE should have responded differently given this risk.

430 At the outset, I acknowledge that in a case where a risk of psychological injury is at issue, determining what is reasonable in the context of an employer/employee 'conflict' is by no means an easy task.

431 However, in my opinion, it was not reasonable for the TAFE to do nothing about the situation - which is what transpired. Rather, having received multiple certificates concerning Mr Johnson's health as a result of the ongoing problems between the two men, the TAFE should have considered intervening to avoid further damage to Mr Johnson's psyche.

432 Part of the adequate response was described by Mr Shevlin following questions from counsel for Mr Johnson:

As an HR manager, you would consider it a very serious thing to receive a document from a medical practitioner indicating that there had been depression due to attitudes of supervisors at work, wouldn't you?---I would.

Had you received those documents, you would have taken steps in response to them, I suggest?--- I would have.

Those steps would have included investigating what led to these complaints to the medical practitioner?---Yes.

And taking steps to resolve any interpersonal dispute that you discovered during that investigation ?---Yes.

Potentially mediating that dispute?---Yes.

You would take steps to support a work who produced such a certificate?---Yes.

That's just a commonsense, good management response to receiving a certificate such as this?---Yes.[387]

433 Indeed, in my view, an appropriate response would not only have been to endeavour to mediate the dispute, but also to monitor the relationship between the two men over the following twelve months (if not beyond). It would certainly have fallen within the duties of a reasonable Human Resources officer or manager to ensure that each of the men were counselled, and that discussion took place with Mr Williams in relation to his management of Mr Johnson.

434 In coming to this conclusion, I accept that two of the certificates (16 May and 1 June 2005) refer to Mr Johnson's depression related to the supervisor as having settled. However the certificate dated 1 June 2005 contained a clear warning to the TAFE of the problem in its recognition that the difficulties had been 'settled by keeping distance'.[388]

435 It was not just the certificates that should have alerted the TAFE to Mr Johnson's risk of psychiatric injury as a result of his relationship with Mr Williams. The meeting between Ms Hunt and Mr Johnson in October 2005 at which there was discussion about Mr Johnson's behaviour during the Good Friday incident should, in light of the contents of the certificates, have alerted the TAFE of the need to speak to Mr Williams about his management of Mr Johnson (notwithstanding Mr Johnson's assurance that he would not behave that way again).

436 This finding is bolstered by Mr Johnson's evident fragility demonstrated during the student cheating and the things happen incidents in late 2005 and early 2006, as well as his reaction when Ms Hunt closed the inquiry into the Good Friday incident in February 2006. Once Ms Hunt observed Mr Johnson's demeanour after these events, she or a colleague in the Human Resources Department should have been aware of his vulnerability and reinforced with Mr Williams the need to be careful in his dealings with Mr Johnson.

437 Had these steps been taken Mr Williams should have been alerted to the need to be extraordinarily cautious in his handling of Mr Johnson at events such as the March in-service meeting.

438 In summary, I am satisfied that by June 2005 a reasonable organisation in the position of the TAFE would have:

(a) arranged for mediation of the problems between the two men with the aim of endeavouring to resolve the conflict (which particularly seemed to be centred on the duties that Mr Johnson was required to perform); and

(b) counselled Mr Williams and Mr Johnson about their behaviour towards each other. In particular, Mr Williams (who was in a position to give directions and control Mr Johnson's activities) should have been alerted to the mental health concerns raised in Dr Verhoef's certificates, and the necessity to use 'kid gloves' in his dealings with him notwithstanding his frustration at Mr Johnson's reaction during the Good Friday incident.

439 I am also satisfied that this message should have been repeated to Mr Williams after Ms Hunt's meeting with Mr Johnson in October 2005 and again after the things happen incident.

440 I should add that I am not satisfied that Mr Williams breached any duty of care owed to Mr Williams for which the TAFE should be held vicariously liable.

441 Unlike the members of the Human Resources Department, Mr Williams was not aware of the diagnosis of aggravation of depression due to his relationship with Mr Johnson. Absent such knowledge, his behaviour at the March in-service meeting, whilst deserving of some criticism, was not a breach of any duty of care owed by him to Mr Johnson.

Causation: Would mediating and counselling have made any difference to Mr Williams' behaviour towards Mr Johnson after mid 2005?

442 Establishing breach of the duty of care owed by the TAFE to Mr Johnson does not make out Mr Johnson's case. It must also be shown that the hypothetical course of action that I have identified would, in some meaningful way, have made a difference to Mr Williams' dealings with Mr Johnson and the consequent effect on Mr Johnson's psyche. Or, to put it in the appropriate legal framework, the question is whether the breach by the TAFE (in failing to mediate between the two men or to counsel Mr Williams) is a cause of Mr Johnson's psychiatric injury.[389]

443 In carrying out this analysis, it is not sufficient to speculate as to hypothetical outcomes; rather, the evidence as a whole must establish on the balance of probabilities that Mr Johnson's case as to causation is made out.[390]

444 Counsel for Mr Johnson relied upon the evidence of Dr Pastore to satisfy the question of causation, putting it this way:

Dr Pastore gave evidence that had the plaintiff been exposed to a less stressful environment over the final twelve months of his employment, the outcome for the plaintiff could have been very different. Dr Pastore noted that if someone returns and they are welcomed back and the restrictions are working and interactions are good a very different outcome can be achieved.[391]

445 This case, however, is not about the perfect working environment and being 'welcomed back'. As I have been at pains to explain, the only viable part of Mr Johnson's claim relates to the one aspect of the TAFE's response, which I have found wanting - adequate counselling and advice to Mr Williams in conjunction with mediation between the two men.

446 Whatever the counselling or advice provided to Mr Williams regarding his interactions with Mr Johnson, it would not have made a jot of difference to Mr Johnson's reaction to the student cheating and the things happen incidents in late 2005 and early 2006. In the first incident, Mr Williams' concern, understandably, was with the behaviour of the student and his conduct was not, in any way, directed towards Mr Johnson. Similarly, the things happen incident involved the reaction of Mr Johnson to the behaviour of a student, not that of Mr Williams. For the purposes of determining causation, the sole focus, in my opinion, should be upon whether the psychological effects of the March in-service meeting incident could have been avoided.

447 I have accepted that Mr Williams 'blasted' Mr Johnson at the March in-service meeting. The confrontation went on for some time and reduced Mr Johnson to tears. There is no doubt that his precarious mental state was further affected.

448 If Mr Williams had received the appropriate counselling as I have set out at [432]- [433]. I think it likely that the March in-service meeting would have been handled differently. I think it reasonable to infer that Mr Williams would not have contemplated 'blasting' Mr Johnson, particularly if he knew of Mr Johnson's fragile psyche and the concerns about the relationship between the two men affecting Mr Johnson's psychological state. There is no reason to think that Mr Williams would not have tempered his reaction and followed advice given to him by a counsellor or the Human Resource Department or an OH&S officer.

449 Indeed, on the one occasion Mr Williams said that he witnessed Mr Johnson break down (in the private meeting between the two following the in-house training incident around March 2005), he felt 'incredibly sorry' for Mr Johnson.[392] Had the TAFE organised a counsellor for Mr Williams to illuminate his contribution to Mr Johnson's fragile mental state, given Mr Williams' apparent concern for Mr Johnson's wellbeing I readily conclude that Mr Williams would have been careful not to pin-point Mr Johnson at the March in-service meeting.

450 It follows that I am satisfied that the breach by the TAFE of its duty of care to Mr Johnson in failing to provide mediation and counselling services post-mid-2005 was a cause of Mr Johnson's breakdown as a result of Mr Williams' conduct at the March in-service meeting.

451 Mr Johnson is therefore entitled to damages resulting from this incident.

Assessment of damages: the psychiatric injury claim

452 Section 134AB(22) of the Accident Compensation Act 1985 (Vic) (the Act) implicitly requires separate awards of damages for 'pain and suffering damages' (damages for pain and suffering and loss of enjoyment of life), and 'pecuniary loss damages' (damages for loss of earnings and loss of earning capacity).

453 Given my conclusions as to Mr Johnson's precarious mental state prior to the March in-service meeting, it is necessary to return to what was said by the High Court in Malec:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[393]

454 The principles in Malec remain good, as was demonstrated in Tabet v Gett,[394] in which Gummow ACJ said as follows:

The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant.[395]

Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, the hypothetical may be conjectured. The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible.[396]

456 Recently, in Smith v Gellibrand Support Services Inc,[397] the Court of Appeal said of this issue:

In Seltsam Pty Ltd v Ghaleb, Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:

(a) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.

Ipp JA continued:

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott) Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.

Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.

Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

As was pointed out in Newell v Lucas, the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

Ipp JA's analysis has been followed by the New South Wales Court of Appeal in Varga v Galea and Ridolfi v Hammond. We also respectfully agree with it. It fortifies the conclusion that it was both proper and indeed necessary for the trial judge to direct the jury by reference to the concept of vicissitudes as he did.[398]

457 Therefore, the assessment of damages for both pain and suffering and loss of earning capacity is to be undertaken, as the High Court stated in Malec, according to the following principles:

Whatever the precise chance that the plaintiff would have developed a similar neurotic condition, the majority in the Full Court erred in refusing to award him any damages for the care and attention given to him by his wife and for the neurotic condition from which he presently suffers. The plaintiff is entitled to damages for pain and suffering on the basis that his neurotic condition is the direct result of the defendant's negligence. Those damages must be reduced, however, to take account of the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar neurotic condition. Likewise, the plaintiff is entitled to compensation for the care and attention provided by his wife. Again that award must be reduced to take account of the chance that factors, unconnected with the defendant's negligence, would have necessitated similar care and attention.[399]

458 I have concluded that had the TAFE not breached its duty of care to Mr Johnson, Mr Williams would have handled his dealings with Mr Johnson differently at the March in-service meeting, with the result that Mr Johnson's psyche would not have suffered a further insult. At the risk of being justly criticised for repetition, the events preceding that episode (which clearly played a significant part in Mr Johnson's psychological state) were not the result of any breach of duty on the part of the TAFE and are not the subject of any award of compensation. To the contrary, those events must be taken into account in assessing the prospect that Mr Johnson would have ended up in a similar psychological condition notwithstanding the TAFE's negligence.

459 Unfortunately, these findings make it particularly difficult to determine the appropriate award of damages. Despite my invitation, neither counsel was prepared to grapple with the prospect of the conclusions I have reached - presumably for good forensic reasons. Mr Johnson's counsel reiterated that the claim was for the entirety of the so-called bullying period, and/or if this was not accepted, from the provision of the first capacity certificate in March 2005 regardless of the timing of the breach. . Counsel for the TAFE merely repeated that his client could not be liable for any award of damages.

460 The problem is compounded by the fact that, with one highly qualified exception, none of the medical evidence addressed the effects alone of the March in-service meeting. The opinions contained in the reports of Drs Pastore and King are based upon acceptance of Mr Johnson's account of his bullying and mistreatment by Mr Williams. Dr Strauss, whilst satisfied that Mr Johnson perceived that he had been bullied, was not satisfied that objectively there was a relationship between Mr Williams' behaviour and Mr Johnson's psychiatric state. Understandably, none of the opinions examines in any detail the effect of the March in-service meeting incident, as opposed to the effects of the other (non-tortious) work-related incidents on Mr Johnson's mental state.

461 Notwithstanding these difficulties, the authorities make it clear that a judge must do the best he or she can to determine an appropriate award of damages on the material adduced.[400] With that proposition squarely in mind, I consider that the following matters are relevant to this analysis.

462 First, I consider that as a result of Mr Johnson's current psychological condition:

(b) his lifestyle and enjoyment of pastimes is significantly affected, as described by Drs Verhoef, Pastore and King; and

(c) he remains fixated with the way he was treated at the TAFE.

1. Second, as the evidence of Mr Brittle demonstrates, Mr Johnson was contemplating leaving the teaching profession as soon as he could. Mr Johnson's run-ins with management in the past had destroyed his satisfaction with work, and the ongoing difficulties in his relationship with Mr Williams prior to March 2006 reinforced that situation.
2. Third, Mr Johnson's psychological state was patently fragile during mid to late 2005 and early 2006. He was battling to cope with what many would regard as regular incidents of teaching duties. His reaction to the student cheating incident exemplifies this: there was no aspect of bullying on the part of Mr Williams in dealing with this incident; rather, Mr Johnson (whom I am satisfied was particularly antagonistic to Mr Williams by this time) formed the view that Mr Williams had not handled the situation appropriately. I have a significant doubt as to whether Mr Johnson's real concern was Mr Williams' treatment of the students. Rather, I think it was just another incident in what was a particularly unhappy working relationship, such as Mr Johnson had experienced years earlier with Mr Herron.
3. In a similar vein, the things happen incident also took a significant toll on his mental state as recounted to Dr Pastore. It is to be remembered that in the incident there was no distinct threat of either actual or imputed physical violence. Rather, a student had made an unsavoury allegation that many teachers would simply ignore. Mr Johnson's reaction, to my mind, shows that by this time he was virtually at the end of his tether.

466 In comparison to many other events described by Mr Johnson at the trial (and which barely rate a mention in Dr Pastore's notes), this incident is described in detail. Dr Pastore said of the incident:[401]

I would probably say that was almost the straw that broke the camel's back. I think it was also probably a reasonable incident, in terms of what happened to Mr Johnson and if I could expand further for the court, if you allow, I think he had already been suffering from accumulated stress to this particular point in time so this was again, one more incident that he has gone through which I think had decompensated him mentally, in terms of being quite fragile at that particular point in time. So yes, I think it was an important incident.

...

I think by the time I got to this particular incident it was, like I say, one of the straws that broke the camel's back where there was this mistrust in the workplace, couldn't approach the employer. Mr Johnson probably already knew what reaction he may or may not get from this manager, given what had happened prior, hence the focus on this particular incident as the time.[402]

467 In a history taken by Mr Brearley (Mr Johnson's medico-legal consultant) in March 2011, the following is noted:

In February 2006 he says he had a very unpleasant confrontation with a rebellious student which upset him greatly and he says this was the 'straw that broke the camel's back'. He says he began crying and he ceased work at this time. At the end of April 2006 he felt he could no longer continue because he was so upset and stressed and he has not worked since that time. He did apply for a part-time job as an automotive salesperson in December 2009 but his application was unsuccessful. He has not applied for any further work and he is in receipt of a disability support pension.[403]

1. I also repeat what was said by Dr Strauss who ,in my view, accurately opined :

I have emphasised that this man has a history of anxiety and depression which goes back a long way and I have stated that it is possible, particularly if he was not bullied or victimised at work, that his current psychological problems are simply longstanding psychological problems that would have affected him irrespective of employment.[404]

1. As I mentioned earlier, this opinion is consistent with the statements made by Mr Johnson to Mr Brittle and the contents of the questionnaire.
2. In summary, all the evidence points to a man with significant longstanding psychological issues struggling to cope with his work environment and demoralised by his own work situation.

471 The only evidence directed specifically to the effect of the March in-service meeting came from Dr Pastore. He was asked by counsel for Mr Johnson about the effect that it would have on his client. He said:

I would say that was a critical point, very critical and quite significant in his eventual decompensation... He would have been quite demoralised by this point in time, self-confidence quite low, self-esteem maybe in tatters. He comes back to return to work. I would presume that his head is about trying to get back into the workforce and you are put down in front of your colleagues and quite significantly, so it would be a critical moment. Quite a critical moment yes.[405]

472 I should also refer to another answer given in evidence-in-chief by Dr Pastore:

Can I ask you in relation to this penultimate day that I described to you that you gave evidence was critical even on that day when he returned to work and he found himself in a supportive environment where he was being welcomed back on the one hand as distinct from happened to him what do you say as to the likelihood of a different outcome being achieved for him, in terms of being able to recover from his anxiety and depression?---Again, I will say it could have been different. But by this stage he was already suffering, I would say, to a reasonable extent. But that was certainly the critical point that basically devastated him completely so I think his psychological function after that period of time was quite limited.[406]

473 These answers, which I treat with considerable scepticism, must be examined in context. Dr Pastore did not see Mr Johnson until 2008. This incident is not mentioned in any of his reports, nor does it form any part of the history taken by Dr Pastore in his many consultations with Mr Johnson. It would appear that he was first asked to consider the effects of this incident during the trial, over eight years after its occurrence. Dr Pastore's responses relied upon the description of an event provided to him in his evidence-in-chief, by counsel for Mr Johnson.

474 It is abundantly clear that the focus of Mr Johnson's concerns (as expressed to Dr Pastore during his clinical attendances rather than in the adversarial context) was the things happen incident in November 2005 which is referred to in each of the reports. It is notable, as I mentioned earlier, that Dr Pastore's extensive and detailed first report containing a diagnosis of an adjustment disorder with mixed anxiety and depressed mood only identifies this incident specifically in the context of the relationship between Mr Johnson's work and his psychological condition.

475 Moreover, I have no doubt, as the answers to Mr Brittle's questionnaire demonstrate, that Mr Johnson has a tendency to become obsessed and preoccupied with wrongs done to him by others. There was a significant risk that any interaction between himself and Mr Williams (no matter how benign) could have produced the final insult to Mr Johnson's psyche which would result in him ceasing work.

476 In summary, I am convinced that Mr Johnson would not have continued to work as a TAFE teacher for much longer, even if the March in-service meeting had not occurred. I think that incident was simply the final straw that broke a particularly fragile camel's back.

477 I am satisfied that within a short period of time - at most a couple of years after the March in-service meeting- Mr Johnson would have been in exactly the same psychological condition as he currently is due to the other events in his life which impacted his psyche.

Assessment of pain and suffering and pecuniary loss damages

478 Counsel for Mr Johnson submitted that an appropriate award of damages for pain and suffering was $300,000:

having regard to the severity of Mr Johnson's primary psychological symptoms as described in his evidence (unchallenged) and as described in the reports of his treating practitioners and again in Dr King's reports'.[407]

479 Apologising again for repetition, this submission does not address the findings I have made. To accept this submission, it would be necessary to assume that all the psychological insults alleged by Mr Johnson as resulting from his employment were compensable.

480 As I have endeavoured to explain, I am satisfied that Mr Johnson's problems with anxiety and depression which substantially affect his lifestyle (to the point where he has become extremely isolated and unable to engage in most recreational activities) would, regardless of the March in-service meeting, have been felt by Mr Johnson within two years of the date of that incident. To put it another way, I am satisfied that any adverse effects on Mr Johnson's psyche resulting from the March in-service meeting would have been subsumed by his overall psychiatric condition (unrelated to any tortious conduct on the part of the TAFE) within two years of the March in-service meeting.

481 I think an appropriate assessment of his pain and suffering damages resulting from this event is $110,000.

482 On the figures produced by Mr Johnson's counsel (based on the agreed figures contained in Exhibit P25), the undiscounted amount for past loss of earnings was $561,404 with approximately $48,125 in relation to future loss of earning capacity to age 60. Counsel submitted that a further amount of $100,000 should be allowed for loss of earning capacity after age 60.[408].

483 Applying the principles in Malec,[409] and for the reasons I have discussed, the prospect of Mr Johnson working to age 60 in the normal course of events (i.e. absent the effects of the March in-service meeting) was no more than one in five, or 20 percent. There was no prospect of him working past age 60.

484 The undiscounted figure for economic loss (mostly in the past with only a matter of months in the future) to age 60 is roughly $610,000. Consistent with my finding as to the prospects of Mr Johnson working to age 60 this figure should be reduced by 80 percent, producing a sum of $122,000. This tallies in a general sense with what Mr Johnson would have earned if he remained in employment for approximately two years after February 2006.[410] There is no reason to make any further discount of this amount.

485 Mr Johnson is, therefore, entitled to judgment in the sum of $110,000 for pain and suffering and $122,000 for pecuniary loss.

(a) The TAFE breached its duty (common law and statutory) to Mr Johnson in relation to both the engine stand and manual transmission incidents.

(b) Mr Johnson sustained an injury to his back (primarily) and to his neck in each of the two incidents.

(c) Mr Johnson is entitled to damages for pain and suffering of $125,000 in relation to those two incidents.

(d) Mr Johnson was not bullied or harassed by Mr Williams.

(e) The TAFE breached its duty (common law) to Mr Johnson by failing from mid-2005 through to March 2006 to intervene in the ongoing conflict between himself and Mr Williams.

(f) The TAFE's failure to intervene by post-mid-2005 was a cause of Mr Johnson's final breakdown at the March in-service meeting in 2006.

(f) Mr Johnson's damages for psychological injury as a result of the TAFE's failure to intervene in his conflict with Mr Williams should be assessed at $110,000 for pain and suffering and $122,000 for pecuniary loss.

487 I will give the parties the opportunity to consider these reasons and to prepare minutes of orders reflecting my conclusions.

[1] First at the TAFE's campus in Thornton Crescent, Mitcham (the Mitcham campus) and then at the campus in Elgar Road, Box Hill (the Box Hill campus).

[2] The clinical records of Dr Verhoef, commencing in 1994, record a past history of 'chronic low back pain' (Exhibit P10).

[3] Sometimes referred to by witnesses as the Mechanics or Motor Mechanics Department.

[4] Transcript of Proceeding, Johnson v Box Hill TAFE (Supreme Court of Victoria, J Forrest J) 88 (T).

[10] Plaintiff's Statement of Claim filed 7 August 2013, [3].

[11] Specifically, the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) (the Regulations).

[16] Plaintiff's Statement of Claim filed 7 August 2013, [7].

[17] The WorkCover meeting incident (discussed below).

[18] Dr Verhoef's clinical notes (Exhibit P10) and medical reports dated 2 December 2008, 7 April 2009, 7 December 2011, 24 March 2012, 12 April 2012, 26 January 2013 and 13 August 2014 (Exhibit P9) were also tendered.

[19] A portion of his clinical notes taken in or around July 2008 (Exhibit D5) and medical reports dated 14 July 2008, 21 February 2009, 26 February 2011, 1 October 2011 and 23 August 2014 (Exhibit P13) were tendered.

[20] Reports dated 6 October 2003 and 22 October 2003 (Exhibit P17).

[21] Questionnaire dated 6 February 2004 (Exhibit P18).

[22] Reports dated 12 October 2004 and 26 November 2004 (Exhibit P23).

[23] Questionnaire dated 22 February 2004 (Exhibit P19).

[24] Reports dated 11 February 2012, 5 April 2012, 2 August 2012 and 13 May 2014 (Exhibit P15).

[25] Reports dated 30 March 2011, 15 March 2012, 12 April 2012, 7 December 2012, 17 January 2013 and 1 August 2014 (Exhibit P14).

[26] Reports dated 11 February 2010, 3 March 2011 and 31 March 2011 (Exhibit P16).

[27] Report dated 26 June 2003 (Exhibit D12).

[28] Report dated 22 November 2007 (Exhibit D13).

[29] Report dated 12 August 2008 (Exhibit D14).

[30] Reports dated 25 October 2011 (Exhibit D15) and 15 March 2012 (Exhibit D16).

[31] Reports dated 14 August 2012 (Exhibit D17) and 17 July 2014 (Exhibit D18).

[32] Reports dated 12 December 2012 (Exhibit D19), 19 December 2012 (Exhibit D20) and 19 August 2014 (Exhibit D21).

[33] Report dated 24 March 2010 (Exhibit D22).

[36] Report of Dr Simon G Kennedy dated 24 March 2010 (Exhibit D22).

[37] Report of Dr Nigel Strauss dated 12 December 2012 (Exhibit D19).

[38] Report of Dr Nigel Strauss dated 19 August 2014 (Exhibit D21).

[50] Excerpts of 'Management and Change' Master's thesis written by Mr Brittle (Exhibit D11).

[51] Excerpts of 'Management and Change' Master's thesis written by Mr Brittle (Exhibit D11).

[53] Email from Mr Johnson to Mr Shevlin dated 7 December 2004 (Exhibit D3).

[54] As described in an email from Mr Williams to Mr Johnson and others dated 23 March 2005 (Exhibit D8).

[55] Emails from Ms Olga Hunt to Mr Johnson dated 15 and 23 September 2005 (Exhibit D7).

[58] T426-T427. See discussion at [226]-[227] below.

[66] Report of Dr David Fish dated 22 October (Exhibit P17).

[76] See generally Davies v Nilsen [2014] VSCA 278 (7 November 2014), [8], [83]-[95].

[77] See Mr Johnson's diagram of the engine stand (Exhibit P5).

[81] T94; see also Mr Johnson's diagram of the engine stand (Exhibit P5).

[82] T198-199. There was some conjecture as to whether the incident occurred at 4.30pm on a Wednesday (when other teachers may be present), or a Friday, when, as Mr Johnson said [at T99] you could 'fire a cannon through the place and be lucky to hit anything'. Regardless of the day on which the incident occurred, Mr Johnson insisted there was nobody around the workshop area to assist him, although he could have, in the extreme, gone to the head office to ask somebody there for help.

[83] Incident Report dated 12 April 2002 (Exhibit P2), T101-102.

[85] Reports of Dr David Fish dated 6 and 22 October (Exhibit P17).

[86] T103; T194-195: in cross-examination Mr Johnson accepted that he did attend Dr Verhoef's rooms on 27 May 2012 (about six weeks after the incident in which he injured his back), but he did not make any mention of the injury.

[88] Reports of Dr David Fish dated 6 and 22 October 2003 (Exhibit P17).

[89] Report of Ms McKenzie dated 12 October 2003 (Exhibit P23).

[90] T91 (per Mr Johnson); T409 (per Mr Pincott).

[103] Incident report dated 25 March 2003 (Exhibit P3).

[106] Incident report dated 25 March 2003 (Exhibit P3).

[108] Incident report dated 25 March 2003 (Exhibit P3).

[109] Emails between Mr Read and Ms Alex dated 18 July 2003 (Exhibit P24).

[110] T256; Claim form dated 14 May 2003 and attachment titled 'Back condition history' (Exhibit D2).

[112] Clinical reports of Dr Verhoef (Exhibit P10); T380. Dr Verhoef agreed that had he been told that the transmission had slid off a work bench and that Mr Johnson had grabbed it and was in agonising pain, he would have written this information down (T382).

[113] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

[114] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9); Dr Verhoef issued ten WorkCover capacity certificates from 10 May 2003 until the end of that year. The certificates identified back pain, and by the end of the year, Mr Johnson was certified as fit for 20-hour duties.

[115] Report of Clive Jones dated 26 June 2003 (Exhibit D12).

[116] Report of Dr David Fish dated 6 October (Exhibit P17).

[117] Report of Dr David Fish dated 22 October (Exhibit P17).

[118] Excerpt of Plaintiff's answers to Defendant's interrogatories (Exhibit D1).

[119] Report of Judith McKenzie dated 12 October 2004 (Exhibit P23).

[120] Certificates of capacity issued by Dr Verhoef dated 7 May 2003, 14 May 2003 and 9 September 2003 (Exhibit P4).

[124] Memorandum prepared by Mr Williams entitled 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9)

[125] Report of Dr Verhoef dated 21 July 2003 (Exhibit P9).

[126] Based on Mr Williams' description of Mr Johnson's return to work in his memorandum 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9).

[127] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

[128] Memorandum prepared by Mr Williams entitled 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9).

[130] Memorandum prepared by Mr Williams entitled 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9)

[133] Mr Johnson initially said that he had been standing on concrete floors for 8 hours per day during this four-week period. Taking into account the morning, lunchtime and afternoon breaks, and the fact that there was seating available in the classroom, in reality the amount of time Mr Johnson would have been standing on concrete continuously was much less than this (as per Mr Williams' evidence at T658-659).

[138] T360; Clinical notes of Dr Verhoef (Exhibit P10).

[140] Clinical notes of Dr Verhoef (Exhibit P10).

[141] E.g. Report of Dr Clive Kenna dated 22 November 2007 (Exhibit D13).

[142] Clinical notes of Dr Verhoef (Exhibit P10).

[143] Report of Ms Judith McKenzie dated 12 October 2004 (Exhibit P23).

[144] [2005] HCA 14; (2005) 214 ALR 349.

[145] [2005] HCA 14; (2005) 214 ALR 349, 353 [12] (citations omitted).

[146] [2009] HCA 35; (2009) 240 CLR 1.

[147] [2009] HCA 35; (2009) 240 CLR 1, 12.

[148] Plaintiff's Statement of Claim filed 7 August 2013, [5].

[149] See generally Papadopoulos v MC Labour Hire Services Pty Ltd [2009] VSC 193; (2009) 24 VR 665, [24].

[150] E.g. Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 27 ALR 367)

[151] Incident report dated 25 March 2003 (Exhibit P3).

[153] [1954] HCA 11; (1954) 100 CLR 225, 229.

[154] [1984] HCA 60; (1984) 155 CLR 306 (McClean)

[158] See McClean [1984] HCA 60; (1981) 155 CLR 306, 311.

[159] See Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VicRp 42; [1981] VR 421, 437.

[160] Incident report dated 25 March 2003 (Exhibit P3).

[162] Certificates of Capacity (Exhibit P6).

[164] See Accident Compensation Act 1985 (Vic) s 134AB.

[165] Report of Mr Roy Cary dated 14 August 2012 (Exhibit D17).

[166] I reject the exaggerated and incorrect view of Dr Kenna that Mr Johnson suffered from 'chronic low back pain.' Dr Verhoef's notes disprove this proposition.

[167] Report of Dr Verhoef dated 26 January 2013 (Exhibit P9).

[168] Report of Judith McKenzie dated 12 October 2004 (Exhibit P23).

[169] Report of Mr Kenneth Brearley dated 30 March 2011 (Exhibit P14)

[170] Report of Mr Brendan Dooley dated 12 August 2008 (Exhibit D14).

[171] Report of Mr Roy Carey dated 14 August 2012 (Exhibit D17).

[172] Report of Mr Roy Carey dated 14 August 2012 (Exhibit D17)

[173] Report of Dr Verhoef dated 7 April 2009 (Exhibit P9).

[175] Specifically, the Certificates of Capacity dated 12 August 2003, 9 September 2003, 28 October 2003 (1), 28 October 2003 (2), 15 December 2003, 12 February 2004, 2 March 2004 and 20 April 2004 (Exhibit P11).

[176] T358, T382 and T400; Questionnaire of Dr Verhoef dated 3 February 2004 (Exhibit P20).

[177] Clinical reports of Dr Verhoef (Exhibit P10).

[178] Questionnaire of Paul Randals dated 6 February 2004 (Exhibit P18).

[179] Report of Dr Verhoef dated 2 December 2008 (Exhibit 19).

[180] Report of Mr Brearley dated 12 April 2012 (Exhibit P14).

[181] Certificates of Capacity dated 12 August 2003, 9 September 2003, 28 October 2003 (1), 28 October 2003 (2), 15 December 2003, 12 February 2004, 2 March 2004 and 20 April 2004 (Exhibit P11).

[182] Medical report of 25 October 2011 (Exhibit D15).

[183] Reports of Mr Damien Tange dated 11 February 2012 (Exhibit P15).

[184] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

[185] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 645 (Deane, Gaudron and McHugh JJ) (Malec), Smith v Gellibrand Support Services Inc [2013] VSCA 368, [60]-[77]. See the further discussion at commencing at [453] below.

[186] Report of Mr Jones dated 26 June 2003 (Exhibit D12).

[188] Report of Mr Michael Dooley dated 25 October 2011 (Exhibit D15).

[189] [2013] VSC 326, [150]-[152] (citations omitted and emphasis added) (Swan).

[190] Indexed in this proceeding as Exhibit P22.

[191] [2013] VSCA 122, [15] (citations omitted) (Brown).

[192] Brown [2013] VSCA 122, [172] (citations omitted).

[193] (2005) 222 CLR 44, [41] (McHugh, Gummow, Hayne and Heydon JJ) (Koehler).

[194] (2005) 222 CLR 44, [21], [35]-[37] and [41] (McHugh, Gummow, Hayne and Heydon JJ).

[195] See below at [405] and following.

[196] See Brown [2013] VSCA 122, [13]-[16].

[203] Discussed in detail below commencing at [274].

[218] November 1995 and October 1997, T354-355.

[222] T781, Excerpts of 'Management and Change' Master's thesis written by Mr Brittle (Exhibit D11).

[223] Excerpts of 'Management and Change' Master's thesis written by Mr Brittle (Exhibit D11).

[232] Clinical notes of Dr Verhoef (Exhibit P10) and T355.

[234] Clinical notes of Dr Verhoef (Exhibit P10) and T375.

[238] Clinical notes of Dr Verhoef (Exhibit P10).

[239] Clinical notes of Dr Verhoef (Exhibit P10) and reports of Dr Verhoef (Exhibit P9).

[241] Certificate of capacity issued by Dr Verhoef dated 24 March 2003 (Exhibit P11) (emphasis added).

[242] Certificate of capacity issued by Dr Verhoef dated 7 May 2003, 14 May 2003 and 9 September 2003 (Exhibit P4).

[255] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

[260] Memorandum prepared by Mr Williams entitled 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9).

[277] Clinical notes of Dr Verhoef (Exhibit P10) and T363

[292] Email from Mr Williams to Mr Johnson and others dated 23 March 2005 (Exhibit D8).

[293] Memorandum prepared by Mr Williams entitled 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9).

[307] [Reading from Johnsons' serious injury affidavit]T243-244.

[327] Memorandum prepared by Mr Williams entitled 'WorkCover History of Robert Johnson' dated 21 September 2004 (Exhibit D9).

[334] Affidavit of Gordon Streader dated 28 October 2011(Exhibit P12).

[338] Reports of Dr Verhoef dated 18 March 2008, 2 December 2008, 22 December 2008, 7 April 2009, 7 January 2011, 24 March 2012, 12 April 2012 and 26 January 2013 (Exhibit P9).

[339] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

[340] Reports of Dr Pastore dated 14 July 2008, 21 February 2009, 24 May 2011, 1 October 2011, and 23 August 2014 (Exhibit P13).

[346] Report of Dr Pastore dated 23 August 2014 (Exhibit P13).

[347] Reports of Dr King dated 11 February 2010 and 3 March 2011 (Exhibit P16).

[348] Report of Dr Pastore dated 3 March 2011 (Exhibit P13).

[349] Report of Dr Pastore dated 3 March 2011 (Exhibit P13).

[350] Report of Dr King dated 11 February 2010 (Exhibit P16)..

[351] Reports of Dr Strauss dated 12 December 2012, 19 December 2012 and 19 August 2012. (Exhibits D19-21).

[352] Report of Dr Strauss dated 12 December 2012 (Exhibit D19).

[353] Report of Dr Strauss dated 19 August 2014 (Exhibit D21).

[354] Report of Dr Strauss dated 19 August 2014 (Exhibit D21).

[355] Report of Dr Strauss dated 19 August 2014 (Exhibit D21).

[356] Report of Dr Kennedy dated 24 March 2010 (Exhibit D22).

[357] Report of Dr Verhoef dated 2 December 2008 (Exhibit P9).

[358] Report of Dr King dated 11 February 200 (Exhibit P16).

[359] Report of Dr King dated 11 February 2010 (Exhibit P16).

[360] Report of Dr Strauss dated 19 December 2012 (Exhibit D20).

[361] Report of Dr Strauss dated 19 August 2014 (Exhibit D21).

[363] Report of Dr Strauss dated 19 August 2014 (Exhibit D21).

[364] (2005) 222 CLR 44.

[365] (2005) 222 CLR 44, [19]-[20].

[366] (2005) 222 CLR 44, [23].

[367] (2005) 222 CLR 44, [21].

[368] (2005) 222 CLR 44, [24] and [35].

[369] (2005) 222 CLR 44, [36].

[370] [2013] VSC 58.

[371] [2007] QCA 366; (2007) Aust Torts Reports 81-919.

[372] [2013] VSC 58, [116].

[373] [2013] VSC 326.

[374] [2013] VSC 326, [162]-[163].

[375] [2014] VSCA 62 (Larner)

[376] [2014] VSCA 62, [205]-[207] (citations omitted).

[379] [2013] VSC 58, [116].

[380] [2005] HCA 62; (2005) 223 CLR 422, [124]-[126] (Hayne J). See also Brown v Maurice Blackburn Cashman [2013] VSCA 122, [200] (Brown).

[381] [2007] NSWCA 377; (2007) 71 NSWLR 471.

[382] [2007] NSWCA 377; (2007) 71 NSWLR 471, [20],[23].

[383] [2013] VSCA 122, [202].

[384] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, [88]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, [60]-[61], [124], [126]-[129]; Wicks v State Rail Authority [2010] HCA 22; (2010) 241 CLR 60, [33]; Hookey v Paterno [2009] VSCA 48; (2009) 22 VR 362, [109].

[385] New South Wales v Fahey [2007] HCA 20; (2007) 232 CLR 486 [7],[58],[123]; Neindorf v Junkovic [2005] HCA 75; (2003) 222 ALR 631[7],[14].

[386] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [106]-[113]; New South Wales v Fahey [2007] HCA 20; (2007) 232 CLR 486, [56]-[58].

[388] Certificate of capacity issued by Dr Verhoef dated 1 June 2005 (Exhibit P11).

[389] See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408.

[390] See Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, [44]-[55], [58]-[64]; Papadopoulos v MC Labour [2009] VSC 193; (2009) 24 VR 665.

[391] Plaintiff's final submissions, [46].

[393] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 642-643 (citations omitted).

[394] [2010] HCA 12; (2010) 240 CLR 537. .

[395] [2010] HCA 12; (2010) 240 CLR 537, [39] (citation omitted).

[396] [2010] HCA 12; (2010) 240 CLR 537, [136].

[397] [2013] VSCA 368.

[398] [2013] VSCA 368, [71]-[73] (citations omitted).

[399] [1990] HCA 20; (1990) 169 CLR 638, 645.

[400] See New South Wales v Moss [2000] NSWCA 133, [87]. Also Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537, [136].

[403] Report of Mr Kenneth Brearly dated 30 March 2011 (Exhibit P14).

[404] Report of Dr Strauss dated 19 August 2014 (Exhibit D21).

[407] Plaintiff's closing submissions, [54].

[408] Plaintiff's closing submissions, [51]-[53].

[410] Statement of Agreed Figures (Exhibit P25).