Plaintiff v Defendant

1 Castricum Brothers Pty Ltd, the defendant, operated an abattoir and meat processing business in Dandenong. The business was divided into the: abattoir and meat processing business; boning business; skinning business; rendering business; and a butcher. Mr Joseph Roussety, the plaintiff, was employed by the defendant as a rendering plant operator ('operator') from October 2000 to 2004, and then as the manager of the rendering plant ('manager') from 2004 to September 2007.

2 In the last three years of his employment with the defendant as manager, the plaintiff alleges he was required to carry out long hours of work, including being on-call 24 hours per day and undertaking stressful duties without appropriate assistance or support, resulting in psychiatric injury, including major depression.

3 The trial was listed for hearing on 6 June 2016. Only evidence in relation to duty and breach of duty was heard. The evidence in relation to causation and damages is yet to be heard and determined.

4 In order to understand why the trial was split, it is necessary to understand the procedural history of this claim. The plaintiff issued proceedings on 12 November 2012. A defence was filed on 14 March 2013. On 3 April 2013, orders were made for an interlocutory timetable, including the fixing of the matter for trial on 14 April 2014.

5 On 24 March 2014 orders were made adjourning the trial date to a date to be fixed. The Court was informed that the plaintiff had been involved in a motor vehicle accident, requiring him to be admitted to hospital on 27 March 2014. Further orders were made on 27 March 2014 relisting the matter for trial on 4 August 2014, on an estimate of 10 to 15 days. By consent, orders were made on 13 May 2014 vacating the 4 August 2014 trial date and the proceeding was relisted for trial on 17 November 2014.

6 On 6 November 2014, the plaintiff made an application to vacate the 17 November 2014 trial date, on the basis that he was not ready to proceed and that he wished to obtain further evidence regarding the causal relationship between the alleged injury he sustained in the course of employment and the injuries he sustained in the motor vehicle accident in March 2014.

7 On 11 November 2014, orders were made vacating the trial date of 17 November 2014 and fixing the matter for further directions on 15 April 2015. On 8 July 2015, the plaintiff filed an application to amend his statement of claim. Ultimately, the application was not made, and costs orders were made against the plaintiff on 11 November 2015. On 17 November 2015 the matter was fixed for trial on 11 April 2016.

8 On 11 March 2016, orders were made confirming the trial date of 11 April 2016.

9 On 6 April 2016, the plaintiff unsuccessfully made an application to vacate the trial date. On 11 April 2016 the plaintiff was unable to attend Court having collapsed and been hospitalised on 7 April 2016. The matter was adjourned to 12 April 2016 in order for affidavit material to be prepared for a further application to vacate the trial date. On 12 April 2016 the trial date was vacated following provision of affidavit material regarding the plaintiff's hospitalisation. Orders were made, including the refixing of the trial date on 6 June 2016. On 13 May 2016, the Court heard the plaintiff's application to vacate the 6 June 2016 trial date. The basis of the application was that the plaintiff's injuries arising out of the March 2014 motor vehicle accident had not stabilised and that the plaintiff was considering his options in relation to any potential claim arising from the motor vehicle accident. At the hearing of the plaintiff's application I formed the view that, based on the evidence before the Court and the procedural history of this matter, a further vacation of the trial date would mean a significant delay in the hearing of this matter. The parties agreed that the plaintiff's difficulties and potential delay in preparing his case related to quantum and not liability in the present matter. The parties agreed that there was no impediment to liability being heard and determined, and that quantum could be heard and determined in due course. In the circumstances, I ordered that the trial proceed in relation to liability alone. At the hearing, the parties did not want causation to be determined.

10 While a split trial is rarely ideal, given the numerous trial date vacations; the fact that the relevant incidents and period of employment were from 2000 to 2007; and the uncertainty about the time it was going to take for the plaintiff's case in relation to quantum to be ready, I considered it in the interests of justice to proceed with this matter as a split trial.

11 As will be seen from the evidence of various witnesses, this case demonstrates the real difficulty of cases being allowed to linger within the Court and not be properly case-managed. It gets harder for parties and witnesses to recall events from a number of years earlier. It is unreasonable to expect witnesses to have perfect recall of such distant events. However, this leads to incomplete and (unintentionally) reconstructed evidence, which is less than ideal for the Court. This underlines the need to expeditiously progress cases through the interlocutory process.

12 The defendant makes the following limited admission:

The defendant for the limited purpose of determining the issues required to be determined by the court, admits that the plaintiff did suffer a psychiatric injury for that purpose but denies that such injury was reasonably foreseeable.[1]

13 The admission amounts to no more than the plaintiff suffered an injury, but there is no admission that it was a workrelated injury.

14 The plaintiff's undated statement of claim pleads that throughout the course of his employment with the defendant, he was required to carry out long hours of work, including being on-call 24 hours per day, and to undertake stressful duties without appropriate assistance or support ('the work').[2]

15 The plaintiff's claim is pleaded in negligence. The particulars of the alleged negligence are as follows:

(b) failing to provide a safe place in which to work;

(c) failing to supply the plaintiff with proper assistance;

(d) failing to properly instruct the plaintiff;

(e) failing to properly supervise the plaintiff;

(f) failing to provide safe plant and equipment;

(g) requiring the plaintiff to work excessive hours;

(h) requiring the plaintiff to be on-call 24 hours per day;

(i) requiring the plaintiff to perform work managing the rendering of the plant without appropriate assistance;

(j) failing to heed complaints by the plaintiff that his work demands were excessive;

(k) failing to carry out any or any appropriate risk assessment upon the work the plaintiff was performing;

(l) failing to carry out any or any appropriate risk assessment upon the work to be performed by the plaintiff; and

(m) failing to comply with the provisions of the Occupational Health and Safety Act 1985 (Vic) and the regulations made thereunder.

16 The plaintiff did not lead any evidence or make any submissions in relation to provisions of the Occupational Health and Safety Act 1985 (Vic) or the relevant regulations.

17 The plaintiff was born in Mauritius on 15 February 1965. He left school at 17 years of age and completed an apprenticeship as a marine carpenter. He migrated to Australia in 1984 at 19 years of age.

18 Having worked in various jobs from 1984 to 2000, the plaintiff commenced working as an operator for the defendant in October 2000. In 2001 the plaintiff was appointed as acting manager of the rendering plant for four to six months, until a new manager, Mr William ('Bill') Johnson, was appointed. The plaintiff was then second in charge to Bill Johnson. In 2004, Bill Johnson left the defendant's employment and the plaintiff was appointed manager.

19 The plaintiff is married. He has children from an earlier marriage, and a young child from his current marriage.

20 As discussed, the defendant operated an abattoir and meat processing business in Dandenong. At the time the plaintiff commenced working for the defendant as an operator in 2000, the defendant processed about 5,000 sheep per day and employed approximately 375 staff.[3]

21 In the relevant period, Gary Castricum was the managing director and Amanda ('Mandi') Bryant was the operations manager. There was an onsite medical clinic and a full-time nurse, Mary Ryder ('Nurse Ryder'). There were various managers, including the rendering manager. Richard Turner was the occupational health and safety officer.

22 The rendering plant operated weekdays, with three shifts: 6.00 am to 2.00 pm; 2.00 pm to 10.00 pm; and 10.00 pm to 6.00 am.[4] There was a morning shift on Saturdays. The rendering plant was fully automated by an interlock system operated by a computer system called the 'Citec System'. It was a single process line with a number of pieces of equipment that were interlocked with the 'Citec System', which a user operated from a computer using a mouse.[5]

23 To run the rendering plant, there had to be an operator for each shift. Each operator was assisted by an assistant operator. When the plaintiff was employed as an operator in 2000, there was a dedicated onsite maintenance person. In 2004 the onsite maintenance person was George Hardy. George Hardy was retrenched in late 2005/early 2006 and not replaced. From that time, the maintenance services were performed by contractors.[6]

24 Each of the plaintiff, Mandi Bryant, Gary Castricum, Nurse Ryder, Richard Turner, Joe Martello (an operator in the rendering plant) and Jennifer Roussety (the plaintiff's wife) gave their evidence in a straightforward fashion. To my observation, each of them attempted to give an honest and accurate account of events as they recollected them.

25 It was apparent during the evidence of the key witnesses, that is the plaintiff, Mandi Bryant and Gary Castricum, that in order to give detailed evidence of the large number of conversations and meetings from 2006 to 2007, they had done a lot of work to reconstruct and recollect events that occurred as best as they were able. It was not suggested that these three witnesses had a memory for dates and conversations that was superior to what might have been expected. Nevertheless, without any file notes, diary entries, meeting records, emails or the like in the relevant period, they purported to give detailed evidence of various conversations and meetings. This had the result of making their evidence, and in particular the plaintiff's and Mandi Bryant's evidence, appear from time-to-time to be a reconstruction. I do not mean to be critical about this. It was the inevitable consequence of the fact that this proceeding required them to give evidence of many conversations and meetings that now occurred between nine and ten years ago.

26 Nurse Ryder was a witness who had the benefit of the first aid records she completed in relation to the plaintiff's attendance at the defendant's medical clinic (Exhibit P5) and the injury incident reports (Exhibit P6). In addition, Nurse Ryder and Richard Turner were able to give their evidence in relation to the plaintiff in the context of their usual practice. For example, Nurse Ryder's evidence, which I accept, is that she would make a note or record of complaints made by an employee when they attended the clinic. If the complaint was not recorded, then it can be inferred it was not made.

27 In the end, the true contest was largely between the plaintiff and Mandi Bryant, and to a lesser extent, Gary Castricum, as to key incidents, conversations and meetings.

28 There were some aspects of Mandi Bryant's evidence that caused me to have concerns about their accuracy. For example, Mandi Bryant's evidence was that she did not recall having an understanding that the plaintiff's absence from work in March 2007 had been stress-related.[7] However, she did recall that by the time of March, April, May and June 2007, the demeanour of the plaintiff had changed significantly.[8] She recalled that from time-to-time the plaintiff looked unhappy, stressed and anxious.[9] However, she stated she did not specifically notice that the plaintiff looked fatigued in the same period.[10] However, she agreed that from time-to-time he complained he was overworked and that they had conversations about how to reduce his workload. Mandi Bryant initially would not agree that the plaintiff had complained of a staff-shortage and asked for more staff. However, she ultimately agreed that he made such complaints on numerous occasions,[11] but stated that there was no staff shortage. She also made such an acknowledgment in Exhibit P14, a statement dated 26 September 2007 where she stated that in early 2007 'I said to [the plaintiff], you complain that you do not have enough staff...'.[12]

29 It was also clear that Mandi Bryant was sceptical about the complaints the plaintiff made to Nurse Ryder on 26 February 2007 that were passed onto her. Mandi Bryant's evidence in relation to Nurse Ryder's reporting on 26 February 2007 that the plaintiff was stressed and overworked was that '[Nurse Ryder] would have reported what [the plaintiff] had said not her views'.[13]

30 Her scepticism was again reflected in the evidence she gave about the plaintiff's fainting episode on 28 February 2007. She referred to the 'alleged collapse',[14] and gave the following evidence in cross-examination:

[Counsel]: So the relationship between you and [the plaintiff] at that time was so poisonous that you thought he was faking collapses at work?

[Ms Bryant]: I have [sic] reservations, yes.

[Counsel] ... you thought this was all a put-on?

[Ms Bryant]: ... I was starting to have significant doubts about some of the things I was being told... I will confess to having some personal reservations.[15]

31 Mandi Bryant's scepticism appeared to influence her willingness to initially make concessions which she ultimately made. It leads me to conclude that on some matters, including the conversations on 21 February 2007 and 10 July 2007, and the complaints made by the plaintiff about work pressure and stress in the first part of 2007, that the plaintiff did tell her but that even ten years later she did not accept that his stress and mental anguish were work-related.

32 It should be said that the plaintiff also gave evidence on some matters that I do not accept. For example, he said in relation to an incident where he had lied to Mandi Bryant about leave he had approved for an employee in the rendering plant, Dennis Boone, that he did so because the employee had made threats of suing the defendant. This was denied by Mandi Bryant and Gary Castricum. I do not consider the plaintiff was truthful on this issue. Further, his evidence in relation to the sales part of his management role being in due course shared with Brad Castricum was not correct. Brad Castricum's evidence, which I accept, was that he eventually took over all the sales work for the rendering plant.

33 However, I consider that on the whole, where there was a dispute about what was said in conversations or at meetings between Mandi Bryant and the plaintiff, the plaintiff's evidence should be preferred.

34 The plaintiff commenced employment with the defendant on 23 October 2000 as a day shift operator.[16] The October 2000 employment contract, signed by the plaintiff on 19 October 2000 states in relation to the hours of work for a rendering plant operator at clause 5 that:

'The hours of work of the employee shall be those as may be reasonably required to carry out the duties of their position, which may occasionally include Saturday or Sunday work in emergency situations. The package is worked on the basis eight hours per day and the equivalent of every second Saturday...'

35 Approximately 12 months after the plaintiff commenced his employment with the defendant, Chris Jennings, the manager, was dismissed.[17] The plaintiff was the acting manager for four to six months and then a new manager, Bill Johnson was employed by the defendant.[18] The plaintiff applied and was considered for the role of rendering plant manager, but was not appointed. As part of that recruitment process the plaintiff was assessed by a psychologist at Chandler Macleod.[19] The evidence was that Bill Johnson was a person nearing the end of his career and the defendant identified him as a mentor to the plaintiff, such that he would learn and develop skills for a management role in the future.[20]

36 The plaintiff was appointed second in charge to Bill Johnson.[21] The first assessment prepared by Chandler Macleod, described as an 'abridged psychological appraisal report' for the defendant in relation to the plaintiff, is dated 26 June 2001. The document states that it was in relation to the plaintiff applying for a junior management role. The report described the plaintiff as a person that liked to do things himself and that: 'He has an ego which he wants to protect and he protects it best by making sure what is done is done perfectly but that means he does it himself. To give work to other people puts at risk his personal credibility and certainly has the potential of damaging his ego if that work is not up to standard and he in turn is held accountable for it. Therefore he will be somewhat reluctant to delegate or will delegate unimportant things...'.[22] The report noted that the plaintiff 'enjoys people, wants to be liked, respected and admired, has a friendly disposition, is generally an unaggressive person and is certainly very straightforward, open and fair, means he is approachable. He does not seek to take advantage of other people and he is not a self centred individual. Yet this does not mean that he will enjoy or be very good in a team leading role. He is the expert within the team'.[23]

37 In 2004 Bill Johnson retired and the plaintiff applied and was promoted to the position of manager. Bill Johnson recommended the plaintiff for the role.[24] The plaintiff's suitability for the role of manager was again assessed by an external psychologist at Chandler Macleod and on this occasion, the plaintiff was hired on an initial 12 month probationary period.[25] The assessment report noted:

His strengths are those he possessed previously but which are better balanced. They include a good eye for detail and a concern for quality. He likes a management title and provided he has learnt to delegate, he can handle staff. He has developed a greater comfort with himself in the sense of being friendly, cheerful and engaging, and by and large he is a co-operative and well-intentioned individual [that was also the case earlier on].

He is less fussy now than he was in the past but still remains a fussy person, who works harder than most to ensure that he will escape criticism. Criticism raises some touchy feelings and therefore if you have worked with him on this front, and he has become a little more immune to the criticism, then that's a healthy sign.

Note, he will still quickly perceive things through a set of glasses that are inclined to see persecution when it doesn't happen and I gather that you have had some evidence of this in the recent past. Whenever he does this, confront him with it until he recognises the behaviour in himself and starts to do something about it...

Whenever you do find him doing something not to your satisfaction, then be very blunt, give him the facts, and then ask him what a better way to handle it is. Where possible, get him to give you the answer to the question or the resolution to the problem. You will get ownership that way.

RECOMMENDATION

Mandi, there is no reason to remove him from the position, in fact that would be a retrogressive step. I do see a person who is thin-skinned and will occasionally sweep a mistake under the carpet at which point you need to step in very heavily until he recognises that owning up to a mistake brings praise rather than criticism. He is such a hard working person, has a generosity of spirit, and if he can merely get rid of his touchiness, he would be an excellent supervisor.[26]

38 The only document in relation to the plaintiff's new position as manager, is a document prepared by Chandler Macleod found as part of Exhibit P1. The document is titled 'Position: Rendering Plant Manager' ('the Position Description'). The document provides a job matrix for the position of rendering plant manager. It notes the stakeholders that the manager would deal with include external customers; management; second in command/supervisor; maintenance coordinator; operators and staff; raw materials suppliers; outside contractors; and regulatory authorities. Focus areas included: people management; production; quality; health and safety; training; and administration.

39 The plaintiff agreed that he was involved in developing the details of the rendering plant manager role including, how many hours and how many staff he needed to work in the rendering plant.[27] He said that the agreement between him and the defendant in relation to the role as manager was discussed with him and that he had input into the development of the role and that he fully understood the role at the time he accepted the position.[28] The plaintiff also agreed that he was willing and happy to take on the role.[29]

40 Gary Castricum gave evidence that he and Mandi Bryant discussed the role of manager with the plaintiff and that he was involved in the development of the role. He said that the plaintiff understood what was involved in the job, that there was a Position Description, that Chandler Macleod was involved in the process and that the defendant was trying to be very specific about what the role involved so that it was clearly understood by the plaintiff.[30]

41 The evidence, including the plaintiff's evidence, was that his role as manager involved the following:

(b) the overall maintenance of the rendering plant;[31]

(e) conducting sales, including the buying and selling of tallow;[32]

(f) the preparation of 'profit and loss' reports in the rendering plant;

(g) reporting to management, in particular Mandi Bryant, and attending a weekly Monday meeting with Mandi Bryant, Gary Castricum and, at times, Brad Castricum;[33]

(h) that his hours were not fixed and from 2004 to 2006 his hours increased from 55 hours to 60 hours, depending on how the plant was running;[34]

(i) he was to be available to take phone calls, 24 hours a day in the event that there was a problem in the rendering plant, including when he was on holidays; [35]

(j) he would have to provide assistance by answering and being available to the staff in the rendering plant over the three shifts if they had problems.[36]

(k) he had a computer at home from which he could check or monitor the running of the rendering plant through the Citec system.[37] This would involve him checking the computer at home at least once or twice a night;[38] and

(l) ensuring the plant complied with the Environmental Protection Authority requirements.[39]

42 As part of the plaintiff's promotion to manager he received a significant pay increase and was given a vehicle and phone.[40]

The requirement for the plaintiff to be on-call 24 hours a day

43 The plaintiff understood that the management role involved extra responsibility, working long hours and being on-call 24 hours in the event that there was a problem at the factory. The plaintiff agreed that he was prepared to work under those conditions in return for extra pay and benefits and that he was happy to do so.[41]

44 The plaintiff agreed in cross-examination that in relation to the night shift, the operator and his assistant were very capable and would do repairs themselves. The plaintiff stated that during the night shift 'not much went wrong' and that he rarely received a call from the night shift operators 'unless something really bad happened'.[42] The plaintiff said that rarely did he hear from the night shift operator and his assistant. On the afternoon shift the plaintiff agreed in cross-examination that the operator, Dennis Boone, would make calls to him after hours at the end or at the start of a month. Dennis Boone was the afternoon shift operator until March 2007.[43]

45 The plaintiff said that he was required to remain on-call and carry his work phone with him while on holiday. The plaintiff's evidence was that on his honeymoon in December 2005/January 2006 in Mauritius, he received phone calls from Mandi Bryant and Joe Martello in relation to locating a container and that he received calls every Monday morning while on holiday.[44] He also said he took the calls because he enjoyed the job and was happy to help but noted that it was 'too much'.[45]

46 Jennifer Roussety gave evidence that the plaintiff would receive calls after hours every day some weeks and then at other times maybe three or four times per week.[46] Jennifer Roussety said that on their honeymoon the plaintiff received calls from work and that he called work.[47]

47 Joe Martello said that the rendering plant operators were instructed to contact the plaintiff if there were any issues. He said this applied 24 hours a day, seven days a week, and included contacting the plaintiff while he was at home.[48] Joe Martello said that there were occasions he had to call the plaintiff after hours, but that he would only call him if there was an issue that he could not fix himself.[49]

48 Joe Martello's evidence was that he was acting manager while the plaintiff was on his honeymoon. He said he would not have called the plaintiff on his honeymoon because he knew the plaintiff needed some time away and he would not have annoyed him.[50]

49 Mandi Bryant acknowledged that the plaintiff was on-call, but stated that she would also be contacted outside work hours and that there was a requirement for all managers to answer their phone at any time should some 'catastrophe occur at the plant'.[51]

50 The plaintiff gave evidence that when he was first employed by the defendant as an operator, his typical hours were six to eight hours a day, totalling 40 hours a week.[52] This increased to about 50 hours per week when he was promoted to second-in-command to Bill Johnson.[53]

51 The plaintiff's evidence was that in his role as manager, from 2004 to 2006, his hours increased from 55 to 60 hours per week and sometimes up to 70 hours per week depending on how the plant was running.[54] On 1 March 2007, the plaintiff reported to Dr Whiteside that he had worked 91 hours over the previous week.[55]

52 The plaintiff gave evidence that he worked hours beyond those he was required to work by talking to operators from home after hours to check if there was a problem.[56] He said that he did this so he could have peace of mind.[57]

53 In his WorkCover Claim form dated 20 July 2007, the plaintiff stated the standard hours he was working prior to the 10 July 2007 incident were over 45 hours per week, as well as being on-call 24 hours a day.[58]

54 There are few actual records of the hours the plaintiff worked. The timesheets tendered by the plaintiff indicate that the plaintiff worked 48 hours in the week ending 22 June 2007 and 39 hours in the week ending 13 July 2007.[59]

55 Joe Martello stated that he and the plaintiff had discussed that the plaintiff felt that he needed time off work:

We'd speak that often about it that it was on a weekly basis. It was because we were working six days a week, you know, ten hours a day. Joe was working more. We were tired.[60]

56 Gary Castricum and Mandi Bryant gave evidence that certain responsibilities were eventually removed from the plaintiff to reduce the workload. Responsibility for sales moved to Brad Castricum in 2006, while Skilled Engineering were engaged to take over the entire management of the maintenance process in about March 2007.[61]

57 In relation to the removal of the sales role from the plaintiff to Brad Castricum, Gary Castricum stated that the sales role required 'a lot of communication... with the buyers'.[62] However, Brad Castricum observed that when it came to communicating with suppliers in sales, '[s]ome of our suppliers we might not talk to one or two months... we might have done a three monthly sale or something like that, or monthly, or every second month. So there wasn't a lot of communication with them'.[63]

58 In respect of the profit and loss work that was moved from the plaintiff to Brad Castricum, Brad Castricum stated that it would take him a couple of hours to put all the information together and prepare the weekly report.[64]

59 Mandi Bryant acknowledged that the defendant was aware by 2007 that the plaintiff was taking work home, but stated that there was no need to do so and that she had a number of conversations with the plaintiff where she advised him that it was not necessary.[65]

60 Given Joe Martello and the plaintiff's evidence, I accept that the plaintiff worked on most weeks 55 to 60 hours, including Saturdays, and that this increased if there were breakdowns in the rendering plant. I also accept that the plaintiff's hours steadily increased from 2006 to February 2007 over what was contemplated when the plaintiff entered into the contract of employment for the role of manager in 2004. The increase in hours was caused to a large extent by the more frequent breakdowns and staff reduction in the rendering plant.

61 A number of witnesses observed a change in the plaintiff's demeanour from when he was first employed by the defendant in 2000 to when he was made redundant in September 2007.

62 The assessment reports prepared in relation to the plaintiff on 16 June 2001 and 17 May 2004 described him as having a 'friendly disposition' and being 'cheerful and engaging'.[66]

63 Joe Martello described the plaintiff as initially being 'always happy' and a 'good bloke' who was helpful around the workplace.[67] However, Joe Martello stated the plaintiff became 'withdrawn', that he 'didn't joke', and that 'his demeanour just changed' and that 'it was obvious', particularly as the number of staff was reduced in the rendering plant.[68]

64 Jennifer Roussety stated that when she first met the plaintiff in 1995/1996 he was 'bubbly, friendly, outgoing... always happy... easy going' and that he was happy to work for the defendant and was 'over the moon' and 'on a high' when he was promoted in 2004.[69] However, she gave evidence that his behaviour and personality changed over time following his appointment as manager and being placed on-call 24 hours a day, and that he became stressed, tired and 'on the edge'.[70]

65 Mandi Bryant agreed in cross-examination that she noticed a change in the plaintiff's demeanour from a happy and jovial person over time, along with a deterioration in his performance.[71] She stated that he looked stressed and anxious from time-to-time from about March 2006 onwards.[72]

66 Gary Castricum stated that by early 2007 he had observed that the plaintiff 'was not as happy-go-lucky as he was when he started' employment with the defendant.[73]

67 Richard Turner's evidence was that as an operator the plaintiff was a 'very happy go lucky open sort of person' who had free time or periods in the day where he could 'kick back, have a cup of coffee or a cup of tea and a chinwag'.[74] He said that when the plaintiff was in the manager's role things changed. His workload changed and he 'had less time to be able to do that'.[75] Richard Turner said that as there were fewer staff a greater load fell on the plaintiff.

68 When asked in cross-examination whether fewer staff and increased workload were causes of the change in disposition of the plaintiff from happy-go-lucky to someone having difficulty with his position Richard Turner said:

I would say it had an influence as to the total - if you could put it in percentage terms I certainly couldn't say it was 100 per cent. It may have been 15 per cent or 20 per cent, or 10 percent but certainly it would have had an effect'.[76]

69 I accept that there was an obvious and marked change in the plaintiff's demeanour from the end of 2006 or even earlier, from happy and outgoing, to withdrawn, stressed and 'miserable'.[77] I also accept that Mandi Bryant, Gary Castricum, Richard Turner and Joe Martello observed these changes.

70 In 2004 when the plaintiff was first appointed as manager there were between ten and 11 staff working in the rendering plant. In 2006 there were seven people employed in the rendering plant. In 2004 there was also a full-time onsite maintenance manager, George Hardy, who was retrenched in late 2005/early 2006 and not replaced.[78]

71 The plaintiff agreed in cross-examination that in George Hardy's place there were appointed maintenance contractors, a resource available to him.[79] Gary Castricum's evidence was that the defendant was spending about $10,000 to $15,000 per week on maintenance contractor staff.[80]

72 The plaintiff had available maintenance staff from other parts of the business.[81] He also had available Rendertech in New Zealand, the manufacturer and installers of the plant, for advice in relation to any issues that arose with the plant.[82]

73 The plaintiff's evidence was that over time the rendering plant became understaffed and that there was insufficient ongoing maintenance. These two factors caused additional pressures and stress on him over the normal pressures of the managerial role. This was because the insufficient maintenance led to the equipment not being properly maintained and more frequent breakdowns. As manager he was responsible for ensuring the equipment was operating properly.

74 The defendant agrees that the rendering plant was encountering more regular breakdowns from mid-2006 due to poor maintenance.[83]

75 What seems to be in issue is the reason why there was poor maintenance and what, if any, effect this had on the plaintiff's mental health. On one hand Mandi Bryant's and Gary Castricum's evidence was that the outsourcing of the maintenance to Skilled Engineering did not lead to poor maintenance, but rather that it arose from the plaintiff's inability to manage the situation.[84] Gary Castricum gave evidence that in 2006 there were more breakdowns in the rendering plant causing interruptions to the business. He said that by early 2007, he had lost confidence in the plaintiff's ability to manage the maintenance, so that the role of managing maintenance was removed from the plaintiff. Skilled Engineering took over the management of the on-site maintenance process within the rendering plant in or about March 2007.[85]

76 On the other hand the plaintiff's evidence, supported by Joe Martello, who worked in the rendering plant from approximately 2002 to 2008, was that the contracting out of maintenance after George Hardy left, led to the plaintiff and rendering plant staff having to do more repairs themselves as well as more frequent breakdowns occurring, and that this involved the plaintiff most of the time.[86] He stated that they were patching things up to keep things going rather than doing a full repair.[87] The plaintiff's evidence was that he complained about the maintenance and staffing issues to Mandi Bryant and Gary Castricum but that there was no real response. In late 2005 he suggested to Gary Castricum shutting the plant down for a week over Christmas for an overhaul, as opposed to doing small jobs every time a breakdown occurred.[88]

77 Joe Martello's evidence was that after George Hardy was retrenched it was harder to get things done because if the maintenance contractor could not come over and repair the problem, the rendering plant staff would have to try to fix it themselves and just keep the plant going.[89] He noted that there was a lack of pre-maintenance and that there were a lot of breakdowns, which 'were constant. They were everyday'.[90] Joe Martello said that when the rendering plant staff had to repair things themselves, the plaintiff got involved 'pretty much all of the time'.[91]

78 In response to the plaintiff's evidence that he suggested in Christmas 2005 shutting down the plant to do an overhaul or maintenance on the equipment, Gary Castricum stated that the plaintiff 'may well have' but that he could not recall.[92]

79 The defendant however submits that the Court should not accept that complaints about staff shortages or more frequent breakdowns were causing the plaintiff concern about his mental health.

80 Further, the defendant submits that the evidence in the case reveals that from about mid-2006 the defendant identified that the plaintiff was not performing his work role and was observed to be struggling.[93]

81 I accept that from 2004 to 2006, there was a reduction in staff and that following George Hardy's departure, the maintenance of the rendering plant deteriorated causing more frequent breakdowns. I accept that these factors placed additional pressure and an increased workload on the plaintiff beyond what was contemplated when he took on the managerial role in 2004. I also accept that these factors contributed to the plaintiff experiencing fatigue and increased stress in his work.

82 In relation to the evidence of Richard Turner and Joe Martello, I note that it was not put to them, nor did they give evidence, that the plaintiff was not performing his job adequately or was struggling to cope with his role. Nor did they give evidence that the plaintiff's fatigue and changed demeanour arose from a difficulty in coping with the role. Joe Martello considered the change was due to the work pressures caused in part by the maintenance issues and the long hours the plaintiff was working.

83 I accept that the plaintiff complained to Mandi Bryant and Gary Castricum about these matters on a regular basis from mid-2006. The fact he was suggesting the rendering plant be closed over Christmas in 2005 for a week is consistent with him raising concerns and there being a problem with the ongoing proper maintenance.

84 I accept that the defendant did little to respond to these concerns until March 2007, when it seems that the management of maintenance in the rendering plant was taken over by Skilled Engineering. However, the evidence is that even then, the plaintiff was still required to attend and deal with maintenance issues.

85 The staffing shortages and new maintenance regime were not contemplated at the time the plaintiff entered into his employment contract with the defendant for the managerial role in 2004. From mid-2006 the fatigue and stress appeared to be at the extreme end and there had been a marked change in the plaintiff's personality. The changes were consistent with someone possibly having mental health problems and there was known to senior management a connection between the plaintiff's work conditions and changed behaviour. Even if it was Mandi Bryant and Gary Castricum's opinion that the plaintiff was not up to the job of manager by the end of 2006, they also knew that he was working long hours, he was under constant pressure, the maintenance issues were ongoing and these were having an impact on the plaintiff's personality, and they therefore ought to have known these factors would impact on his mental health.

86 It is in this background that, by late February 2007, the plaintiff developed acute symptoms.[94]

87 As manager the plaintiff was also responsible for sales in the rendering section.[95] Toward the end of 2006, the plaintiff's sales role was removed and it was given to Brad Castricum.[96]

88 The plaintiff's evidence in relation to why this responsibility was removed from him was that he had sold tallow at a certain price and could not fulfil the order at the end of the month because there was a breakdown in the rendering plant. He said that after this incident he shared the sales role with Brad Castricum. He said that rather than reducing his workload it made it harder. He said that he raised this issue with Mandi Bryant.

89 Mandi Bryant confirmed that there had been issues with tallow that led to the sales role being transitioned to Brad Castricum. She stated that the role was only shared between Brad Castricum and the plaintiff during the initial transition, 'but it was then very much taken off [the plaintiff] and he... did not have the responsibility'.[97]

90 Gary Castricum's evidence in relation to the tallow incident was that:

There was significant contracts not met, not controlled, not relayed correctly - to you know - to myself, and that resulted in Joe receiving a warning for that, and his responsibilities for sales and procurement or the buying of raw material - not that there was a lot of that going on - were removed entirely and moved to Brad Castricum.[98]

91 Gary Castricum said that Brad Castricum took over the sales role in its entirety and that the only involvement the plaintiff would have had was communicating with Brad Castricum as to what contracts needed to be fulfilled so that the plaintiff could coordinate the logistics.[99]

92 Brad Castricum gave evidence that he took over sales from the plaintiff approximately six or 12 months after he returned to work for the defendant in 2004/2005.[100] Brad Castricum was asked whether the role was shared between him and the plaintiff and he stated, 'I basically took that [sales] over and all I did was told [the plaintiff] what's been sold, and that's - that was it.'[101] He said that sales was a simple process and that he and the plaintiff cooperated and that he would need to get information from the plaintiff to do the sales role. Brad Castricum said he took over sales from the plaintiff because it was his understanding the director wanted him to take certain roles from the plaintiff and to take a bit of the pressure off the plaintiff in relation to jobs that he was doing. He also noted that there was another job he took from the plaintiff which was the preparation of the weekly profit and loss report.[102]

93 I accept that the sales role was taken from the plaintiff and assigned to Brad Castricum. I also accept that removing sales was done to remove some of the pressure from the plaintiff. Informing the decision to remove the sales role was the plaintiff's poor handling of the tallow on one occasion which caused financial loss to the defendant.

The plaintiff's reporting of work-related stress issues

94 The plaintiff gave evidence that from 2006 onwards his work was getting very stressful and hard, and that he was getting very stressed, exhausted and anxious.[103] He said that he had difficult meetings with Gary Castricum and Mandi Bryant probably in mid-July 2006, and that he reported that staffing levels were low and that the rendering plant was getting old and needed more attention.[104]

95 The plaintiff stated that in approximately April or May 2006, his daughter was raped. He said that after the rape he was taking a couple of hours off per day to attend counselling sessions with her. The plaintiff's evidence was that Gary Castricum had a discussion with him about how long the counselling sessions were going to last and that the plaintiff needed to be at work. The plaintiff's evidence was that as a result of the discussion he attended later appointments with his daughter.[105]

96 The plaintiff said that around September/October 2006 and on a few other occasions he complained to Mandi Bryant and Gary Castricum that he wanted a break from being on call 24 hours a day.[106] He said that he made the complaint in their office but could not recall the exact date.[107]

97 The plaintiff gave evidence that in mid-2006 he complained to Richard Turner. His evidence was that he told Richard Turner that the 'job is really getting to all of us and that - especially me. It's getting - the hours and the call outs and it's not helping me at all and we're not receiving much support, and his [Richard Turner's] respond [sic] to that was make sure you let management know so they can help you out'.[108] He stated that he approached Richard Turner at the end of 2006 or early 2007 about problems he had in terms of depression and anxiety.[109]

98 In re-examination the plaintiff's evidence about the complaints he made to Richard Turner was as follows:

[Counsel]: What do you recall saying to Mr Turner and what was it that caused you to go if not at some subsequent time to talk to him?

[The plaintiff]: Firstly, the reason I didn't go to Mr Turner at first is because I approached Gary and Mandi Bryant, so that they can help me out. I thought well, they're my direct boss. I don't need to go and get the OH&S involved. You know, they - they can help me. Like, you know, I thought that that would be the right thing to do but, you know, that didn't happen.

But when I did talk to Mr Turner I did advise him that, you know, this job was causing a bit of stress. Um I'm getting lots of calls. The plant is getting - ah, old and it's increasing on the - on the demand of my - my time. You know ... I wasn't getting a break from it so that's - in those - in those lines.

[Counsel]: Did you just have one discussion or did you have a number of discussions with him?

[The plaintiff]: A few. A few times I've spoken to him.

[Counsel]: And that was the first discussion. What were the subsequent discussions, as best you recall?

[The plaintiff]: Pretty much the same thing, like, you know. ... He will actually tell me, you know, 'make sure you tell management what's going on.' Which I did tell the management what's going on.[110]

99 The defendant agrees that the Court can accept that the plaintiff discussed staffing levels with senior management from time-to-time in the context of regular management meetings.[111]

100 Mandi Bryant's evidence was that she did not specifically recall the plaintiff discussing with her and Gary Castricum being very stressed and exhausted in mid-2006.[112] Mandi Bryant confirmed she had no dissatisfaction with the plaintiff's performance until late 2006 at the earliest, although she noted the change in his demeanour over time.[113] Mandi Bryant said she did not specifically recall when the plaintiff first mentioned he was stressed, overworked and anxious. Her evidence was that the plaintiff from time to time said he was overworked and that they had conversations about how they could reduce his workload. Although she initially could not recall the plaintiff requesting further staff, she ultimately acknowledged that he did make complaints but she stated that there was no staff shortage and that he had let staff go.[114]

101 I accept that the plaintiff raised with Mandi Bryant and Gary Castricum that he considered there were staff shortages that led to deficiencies in the maintenance of the rendering plant.

102 In relation to the plaintiff's claim that he asked for a break from being on 24 hour call, Mandi Bryant states that the plaintiff did not request to be relieved of his responsibility to be on-call 24 hours a day, seven days a week during his March 2007 sick leave.[115] However, the allegation that the plaintiff made such a request in September/October 2006 was not put to either Mandi Bryant or Gary Castricum. In the face of the plaintiff's unchallenged evidence in this regard, I accept that such a request was made at that time.

103 Richard Turner, relying on his unaided memory after ten years, could not recall the plaintiff telling him he was struggling with work or that he was very tired but observed that the plaintiff was not his normal himself.[116] He said he was concerned about the plaintiff's well-being and could see he was having difficulties.[117] He could not recall if Joe Martello spoke to him about the plaintiff.[118] Richard Turner said that he would not have divulged any concerns about the plaintiff to Joe Martello because it would have been confidential. Richard Turner stated he reported his concerns to Mandi Bryant.[119] Richard Turner's evidence was that when he reported concerns to Mandi Bryant, he recalled saying that the plaintiff was not the same as he used to be and that he was having difficulty coping with the position.[120] Richard Turner said that as soon as he considered the plaintiff was having difficulty performing his role, he went immediately to Mandi Bryant and stressed the importance that something be done about it.[121]

104 Richard Turner said that he told Mandi Bryant in no uncertain terms that this was an issue that had to be dealt with and the quicker the better to prevent the issue escalating.[122] His evidence was that these initial discussions with Mandi Bryant occurred many months before the plaintiff finally ceased work.[123] Richard Turner said that he would have also had discussions with Nurse Ryder about the plaintiff's difficulties at work.[124]

105 I accept that the plaintiff by at least late-2006 complained to senior management about work-related stress arising from his hours and the ongoing breakdowns in the rendering plant. Senior management and Richard Turner observed changes in his personality. I also accept that Richard Turner communicated his concerns about the plaintiff to Mandi Bryant.

106 In February 2007, there was a major breakdown in the rendering area arising out of a problem with machinery. The plaintiff's uncontested evidence was that on 20 February 2007, he had started work at 5.30 am and had not left until 4.00 pm. During the afternoon or evening, the plaintiff received phone calls relating to further equipment problems in relation to 'the press'.[125] The plaintiff received a call at about 10.00 pm or 10:30 pm advising him that the press was 'definitely out of action', so he went in to work and remained there until 7.00 am.[126] He said that at about 7.00 am on 21 February 2007 he had a discussion with Mandi Bryant, during which he said that he had been working through the night. The plaintiff says Mandi Bryant responded by telling him that he had to attend a training seminar that morning. The plaintiff attended the course but fell asleep.[127] The plaintiff stated Mandi Bryant said something to the effect that 'I had to stay', but he could not recall her exact words.[128]

107 In re-examination the plaintiff said the manner in which the discussion occurred was 'not friendly at all', and stated that 'it was an order, it was actually said "you, I want you to stay. You need to stay there ... This is what I want you to do today. You need to be at that ... presentation"'.[129] The plaintiff's evidence was that he was trying to tell Mandi Bryant that he had worked about 24 hours the day before but that Mandi Bryant 'didn't want anything to do with that'.[130]

108 Joe Martello gave evidence that Mandi Bryant was a very hard person whom he had never heard anyone at work describe as pleasant.[131] He stated that 'if something went wrong, it was our fault ... There was no give or take'.[132]

109 Mandi Bryant agreed that she would have asked the plaintiff to attend the course but she denied that she had any knowledge of the hours he had been working.[133] She agreed that it would be completely irresponsible for an employer to keep someone on the job, even at a presentation course, after working 26 hours non-stop.[134]

110 I accept the plaintiff worked 20 hours over a 26 hour period and had remained on-call for the remaining six hours. I accept that he subsequently asked not to attend the presentation. I consider it more likely that the plaintiff tried to explain the hours he had worked but that Mandi Bryant refused to listen or accept what he said. Mandi Bryant agreed that by this time she had grown tired of the plaintiff's ongoing complaints and stated that while she would not have disregarded a complaint by him, she 'may have taken it with a grain of salt'.[135]

111 The evidence is that the plaintiff was hard-working and not one to avoid his responsibilities. I accept that the plaintiff would have asked not to go to the training session because of fatigue. I do not accept that Mandi Bryant was not aware of the extensive hours the plaintiff had worked overnight. I consider Mandi Bryant would have been dismissive of the plaintiff's complaints and therefore would not have fully informed herself of the circumstances. I accept that Mandi Bryant would not have insisted that the plaintiff attend had she fully understood or accepted that the hours the plaintiff had worked the preceding 24 hours. However, Mandi Bryant failed to accept what the plaintiff said and failed to make her own enquiries, in circumstances where a dedicated, hard-working manager was asking not to attend a presentation on the basis of having worked very long hours.

26-28 February 2007 - the first incident with the plaintiff

112 On 26 February 2007 the rendering plant re-started after the breakdown. The plaintiff attended the defendant's medical clinic that day and saw Nurse Ryder at 6.25 am. The daily treatment form completed by Nurse Ryder recorded:

Injury/ailment: Stressed/insomnia.

Treatment: Counsel - discuss work situation - check BP 133/87.

Cause: Work/worker problems have caused him to become stressed - states that he is working excessive hours.

Comments: Advised re management of stress situations - one task at a time - priorities. reassured.[136]

113 Nurse Ryder said that to the best of her memory, the plaintiff had some issues with someone or some people in the rendering plant that were causing problems.[137]

114 Nurse Ryder's evidence was that in relation to the notes she made on 26 February 2007, she would have passed that information on to Mandi Bryant and that she probably would have discussed it with Mandi Bryant. She said she most likely would have passed it on to Richard Turner.

115 Mandi Bryant's evidence was that she had no reason to doubt that Nurse Ryder would have informed her of the matters the plaintiff raised at the 26 February 2007 consultation.[138] Mandi Bryant said that insomnia had been an ongoing issue that the plaintiff had previously raised.[139] It was put to Mandi Bryant that this was not the first time that the plaintiff had raised issues about being stressed, overworked and under pressure. Mandi Bryant's evidence was that the complaints revolved around issues 'more at home'.[140]

116 On 27 February 2007 the plaintiff again attended on Nurse Ryder at 6.55 am with a sore shoulder. The plaintiff told Nurse Ryder that he strained his shoulder at about 2.00pm the day before (26 February 2007), when undertaking work on the plant.[141] Nurse Ryder's evidence was that if the plaintiff had told her of ongoing problems with stress and insomnia she would have recorded it.[142]

117 On 28 February 2007, the plaintiff was in the process of checking discharge water requiring him to climb up a small ladder when he fainted and fell backwards bruising his buttocks.[143] He was brought to the defendant's medical clinic at 7.20 am and seen by Nurse Ryder. Nurse Ryder observed the plaintiff for three and a half hours and the plaintiff was then driven home by Gary Castricum.[144] The plaintiff gave evidence that he told Nurse Ryder 'I fainted because I've been overworked, and... we needed help' and that he 'can't sleep much'.[145] This is not recorded by Nurse Ryder. I accept that Nurse Ryder would have made a note of the discussion if it occurred as it was her usual practice to do so.

118 There is a conflict between Gary Castricum's and the plaintiff's evidence as to what was said on the drive home on 28 February 2007.

119 The plaintiff's evidence is that Gary Castricum asked him what had happened in the morning and put his hand on the plaintiff's lap and said 'you know we're sorry about how you've been treated, you know, things will get better'.[146] The plaintiff said that he responded 'hopefully going forward we'll work together much better'.[147]

120 The plaintiff said that Gary Castricum came into his home and apologised to his wife about the way the plaintiff was treated. The plaintiff said that Gary Castricum said words to the effect of 'I'm really sorry about not giving [the plaintiff] the right support and the right help when he needed it' and went on to say that 'things will get better and they would work together'.[148]

121 Gary Castricum denied that he said those things to the plaintiff.[149] His evidence was that he volunteered to drive the plaintiff home with the purpose of speaking to the plaintiff about stepping down from his role as manager. Leading up to 28 February 2007, Gary Castricum's view was that the plaintiff was not meeting what the defendant needed of a manager in the rendering plant and that they needed a new manager. Gary Castricum's evidence was that he liked the plaintiff personally and recognised he had skills that were very useful for the defendant to retain.[150] Gary Castricum said that in relation to what he told the plaintiff's wife he recalls being relatively open with the plaintiff's wife and talking about the fact that the issues were very much about the plaintiff's management of the resources available to him. He did not think he spoke with the plaintiff's wife about asking the plaintiff to step down. He said that he asked the plaintiff to step down when they were alone in the car but that he could not recall exactly what was said. His evidence was that he was sorrowful that he was in a situation where he had a manager that he was suggesting should step down.[151] He said that he was hoping to retain the plaintiff in the role of operator but understood that that would have an impact on the plaintiff's income. He said that he did not think the plaintiff would walk into a management role elsewhere because he did not show the abilities for such a role.[152]

122 Jennifer Roussety gave evidence that Gary Castricum came into the house and apologised for what had happened to the plaintiff.[153] However, she stated that the plaintiff did not talk to her about what Gary Castricum said in the car and that she did not recall Gary Castricum saying it was time for the plaintiff to step down.[154]

123 I accept Gary Castricum's version of events. I am satisfied that Gary Castricum would have driven the plaintiff home for the sole purpose of asking him to step down from the role. Gary Castricum was made aware by Mandi Bryant that the plaintiff was having issues. I accept that Gary Castricum wanted the plaintiff to stay on as he was regarded as a skilled operator and useful to the defendant. I accept that by this stage Mandi Bryant and Gary Castricum considered that the plaintiff was not coping with his role as manager and that it would have been in the defendant's best interest for the plaintiff to step down to the role of operator. I accept that Gary Castricum may have offered the plaintiff some sort of apology, given he was asking the plaintiff to consider stepping down.

124 I also accept that Gary Castricum would have had a clear memory of why he offered to drive the plaintiff home. He had one reason to drive the plaintiff home and that was to discuss the plaintiff's future as a manager. On the other hand, the plaintiff had recently had a fainting episode, had been under observation for three and a half hours and was not well enough to drive home. His memory of the events may not be as accurate in such circumstances.

125 On the day of the 28 February 2007 incident, Nurse Ryder filled out an injury report.[155] Nurse Ryder said that, in accordance with her usual practice, she would have sent the report to Richard Turner for investigation.[156] Richard Turner prepared an investigation report dated 4 April 2007 in which he recorded that the plaintiff had been referred to the defendant's Employee Assistance Program ('EAP').[157]

126 Richard Turner agreed that the episode on 28 February 2007 raised red flags to him about the plaintiff and he therefore approached Mandi Bryant and would have spoken to her about the plaintiff on more than one occasion.[158] Richard Turner's evidence was that once the plaintiff returned to work in March 2007 after time off work following the 28 February 2007 incident, 'from memory he appeared better but not as good as he [was] when a plant operator. There was an improvement'.[159]

The plaintiff's absence following the first incident

127 The plaintiff was away from work from 1 March 2007 to 18 March 2007. His general practitioner, Dr Whiteside, provided three sick leave certificates from 1 March 2007 to 5 March 2007; 5 March 2007 to 11 March 2007; and 13 March 2007 to 18 March 2007.[160] The certificates are generic and do not identify the nature of the plaintiff's illness. Dr Whiteside's clinical records (Exhibit P12) record that the plaintiff initially attended on 1 March 2007, 5 March 2007 and 8 March 2007. At these consultations, the plaintiff complained of being always tired, feeling guilty about not being at work, having headaches, feeling on the edge all the time, and having worked 91 hours during the week prior to the 1 March 2007 consultation. Further, the plaintiff stated at these consultations that he had been struggling at work over the previous eight months, was thinking of work when he should be sleeping, that staff had been reduced from ten to seven, and that he had been picking up the 'slack'. When the plaintiff attended Dr Whiteside on 15 March 2007, he was provided with Stilnox as he said he was not sleeping well, and was scheduled for a review on 21 March 2007.

128 Mandi Bryant testified that she had not witnessed the incident on 28 February 2007 and expressed 'reservations' about the 'alleged collapse' as nobody else witnessed it. However she stated the defendant treated the incident as if it had occurred as the plaintiff stated.[161] Mandi Bryant's evidence was that they took steps after the incident by connecting the plaintiff with EAP; reducing his workload by taking away sales, maintenance and other components; asking managers like Brian Chaffy to provide more assistance; while she herself spent more time visiting the plant, including discussing time management with the plaintiff so that he would not take work home.[162]

129 Mandi Bryant stated that she could not recall making any enquiries about the state of the plaintiff's health after he was sent home on 28 February 2007, however she stated that she would have had a conversation with Nurse Ryder about his health leading up to the period of leave he took.[163]

130 Mandi Bryant gave evidence that during the three weeks the plaintiff was away at the start of March 2007, she was not quite sure why he was at home and was unaware of the circumstances of his absence.[164] She also stated that she discussed the matter with Gary Castricum in terms of what was going on and what would happen with the plaintiff going forward. She could not recall if she ascertained the reasons why the plaintiff was away from work for three weeks at that time.[165]

131 The plaintiff returned to work on 19 March 2007. He gave evidence that during the time he was off work from 1 March 2007 to 18 March 2007, he was still required to be on-call.[166]

132 In relation to the amount of time the plaintiff took off, Gary Castricum stated he 'would have been surprised' at the three week absence, '[b]ecause three weeks is a long time to be absent from your responsibilities'.[167] He stated that employees were given time off by their doctors for 'a whole range of reasons' and that was part of the reason the defendant had employed Nurse Ryder, as she would liaise with those doctors.[168]

133 As to the reason for the plaintiff's extended absence, Gary Castricum's evidence was that he would not have followed it up with Nurse Ryder as that was something that Mandi Bryant would have done. However, Gary Castricum denied knowledge that the plaintiff was taking time off for psychiatric, rather than physical, reasons.[169]

134 Gary Castricum's evidence was that upon the plaintiff's return to work on 19 March 2007, he asked him whether he had considered the suggestion to stand down and the plaintiff 'said he had and he didn't wish to, and he said that to me very confidently and very happily'.[170]

135 Although Mandi Bryant and Gary Castricum were aware that the plaintiff was off work from 1 March 2007 to 18 March 2007, there was a paucity of evidence as to their knowledge as to why he was absent. I find it difficult to accept they would not have undertaken enquiries to ascertain the reason for the absence of the plaintiff, a manager who was absent for a significant period, when the evidence shows that the rendering plant was already understaffed prior to his absence. I find that the defendant was aware that the plaintiff was off work due to stress in circumstances where the plaintiff had reported suffering stress and insomnia in the lead-up to the incident of 28 February 2007. Any enquiries with Nurse Ryder would have put Mandi Bryant on notice that the plaintiff was away due to work-related stress. I find it incredulous that senior management would not have made enquiries about the absence of a key manager if for no other reason than to ensure the rendering plant was running and performing properly.

The conversation of 21 March 2007 between the plaintiff and Gary Castricum

136 The plaintiff gave evidence that in the week following his return to work, he and Gary Castricum had a conversation on 21 March 2007 in which they discussed the plaintiff's concern that he had been overworked and stressed since mid-May 2006, around the time of the rape of his daughter.[171] The plaintiff complained to Gary Castricum about not having been given much extra time off during that period.[172]

137 The plaintiff said that upon raising his concerns, Gary Castricum got close to his face and said 'what do you think, your fucking family is too special?' and that the plaintiff could go away now and take more stress leave if he wanted.[173] In cross-examination, the plaintiff had slight difficulty remembering precisely what Gary Castricum said.[174] The plaintiff denied that Gary Castricum said words to the effect that 'you're not the only manager here with problems at home. Get on with it' and also denied that Gary Castricum subsequently apologised to him.[175]

(a) he had a conversation with the plaintiff about work/life balance and that the plaintiff took offence;[176]

(b) he and another manager had their own personal problems at home, and so he lost his cool with the plaintiff and said something to the effect that the plaintiff was not the only one with family issues;[177]

(c) he left the office to cool down before subsequently apologising to the plaintiff, which he believed resolved the issue;[178]

(d) he does not recall telling the plaintiff that he could go and take more stress leave if he wanted to;[179] and

(e) he was aware the plaintiff had been absent for approximately three weeks up until 19 March 2007, but was not involved in discussions about arranging the leave and he did not think he had been told the plaintiff was taking stress leave.[180]

139 I accept that Gary Castricum said to the plaintiff words to the effect 'you are not the only person with problems at home', and that he 'lost his cool' in the course of the conversation. He had his own personal issues, namely his wife's health problems, which gave him a reference point for this conversation. I accept that Gary Castricum subsequently apologised to the plaintiff and considered the issue to be resolved. While in cross-examination the plaintiff seemed to have difficulty remembering exactly what was said between him and Gary Castricum, I note that Gary Castricum was equivocal about whether he said to the plaintiff words to the effect that he could take more stress leave. On balance I accept the plaintiff's version of events that Gary Castricum did say words to the effect that the plaintiff could take more stress leave.

140 The plaintiff was then away from work from 23 April 2007 to 27 April 2007. The plaintiff's evidence is that the plaintiff attended work on 26 April 2007 at Mandi Bryant's behest to complete a report for Gary Castricum.

141 In her evidence, Mandi Bryant stated she could not recall contacting the plaintiff during his absence from 23 April 2007 to 27 April 2007 to request he return to work on 26 April 2007 to complete a report for Gary Castricum.[181]

142 I accept the plaintiff's evidence that he attended work on Mandi Bryant's instruction while he was on leave to prepare a report for Gary Castricum.

The defendant's knowledge of the plaintiff's condition in April 2007

143 The plaintiff gave evidence that he told Mandi Bryant and Gary Castricum separately in April 2007 that he was suffering from anxiety, depression, stress and exhaustion, and that he was run down.[182] He says that he told Gary Castricum that the defendant needed more staff, he was working too many hours and that the plant was old and needed repairs as breakdowns were causing stress.[183]

144 Around March/April 2007, the defendant arranged for the plaintiff to see Jim Houston from EAP, whom he saw four to six times.[184]

145 Gary Castricum gave evidence that he does not recall any conversations with the plaintiff about him being stressed, overworked, depressed and anxious.[185] His evidence was that prior to the plaintiff's final collapse, the plaintiff was 'very keen to present himself as someone still being able to maintain the role'.[186]

146 Gary Castricum was told by Mandi Bryant around this time that the plaintiff had accessed EAP and Jim Houston, but no details were discussed due to confidentiality issues.[187]

147 Mandi Bryant stated that she recalled a telephone conversation with the plaintiff about looking after oneself, time management, getting exercise and sleep, and leaving things at work. She did not recall him talking about depression but did recall employees saying they were stressed at times.[188] She was not aware that the plaintiff was receiving treatment for depression, anxiety or any psychiatric illness.[189]

148 The evidence demonstrates that the plaintiff not only complained to a number of people about the difficulties he was having at work and the impact on his mental health, but that there was a system in place where these concerns would have been raised with members of management. The evidence shows that:

(a) the plaintiff gave a history to Nurse Ryder on 26 February 2007 that he was stressed and suffering from insomnia caused by work;

(b) Nurse Ryder would have passed the information on from the 26 February 2007 consultation to Mandi Bryant;

(c) Mandi Bryant in turn would have passed the information on to Richard Turner;

(d) the plaintiff previously expressed concern about being stressed, overworked and suffering insomnia. Mandi Bryant accepted there had been complaints about insomnia;

(e) Richard Turner did not recall the plaintiff coming to him with any concerns in mid-2006. He observed that the plaintiff was not his normal self and as a result of his observations in the change in the plaintiff's demeanour he approached the plaintiff, who expressed being tired. Richard Turner says that he reported his concerns to Mandi Bryant. Richard Turner could not recall when he approached Mandi Bryant, but stated that it was many months before the plaintiff's employment was terminated in July 2007;[190] and

(f) it was Richard Turner's practice to report observations about employees to Mandi Bryant, as operations manager, and that it was then for Mandi Bryant to manage the issues. This might include involving the employee in the EAP and using Jim Houston's services.[191] Richard Turner said he also would have had discussions with Nurse Ryder about the plaintiff.[192]

149 The plaintiff was away from work from 1 March 2007 to 18 March 2007. The medical certificates for this period are silent on the reason for the absence from work or the medical condition.[193] The plaintiff continued to see Dr Whiteside and was referred to Monica O'Kelly, a psychologist. The plaintiff also received a WorkCover certificate of capacity stating he was only fit for modified duties from 29 March 2007 to 12 April 2007 on the basis of anxiety and exhaustion, as well as a WorkCover certificate of capacity stating he was unfit for any duties from 23 April 2007 to 27 April 2007 due to depression and anxiety. However, I accept the defendant did not receive these two certificates of capacity.[194] I also accept that on balance the plaintiff did not submit the WorkCover claim until his employment was terminated in September 2007. Importantly, I accept Nurse Ryder's evidence that she would have opened a file if they were received. These are the documents that specifically refer to the plaintiff having medical conditions of anxiety and depression that are work related.

150 The difficulty is that even if the plaintiff only presented the two WorkCover capacity forms in September 2007, he was away from work from 1 March 2007 to 18 March 2007 and then from 23 April 2007 to 27 April 2007. It is not clear on what basis the defendant understood the plaintiff to be on sick leave. A prudent employer would have made enquiries in this period and put measures into place for when the plaintiff returned to work.[195]

151 Given the significant period of time the plaintiff was away from work, with the background of an employee who was known to be struggling with his workload and duties, the defendant's management should have known that the plaintiff was at risk of psychiatric injury. Factors indicating this risk included the change in the plaintiff's demeanour, the incident on 28 February 2007, the reporting to Nurse Ryder of insomnia and stress, Mandi Bryant's decision to refer the plaintiff to Jim Houston, the reduction in the plaintiff's responsibilities, Gary Castricum's discussion with the plaintiff about stepping down from his manager role, Gary Castricum's discussion where he told the plaintiff to take more stress leave, Richard Turner's concerns, and the reporting of those concerns to Mandi Bryant. I consider the defendant knew the plaintiff's absence from work was due to a work stress-related condition. I also accept that in April 2007 the plaintiff said to Mandi Bryant and Gary Castricum words to the effect that he was 'exhausted, run down, stressed'. Whether he used the specific words 'depression' or 'anxiety' is not clear. However I consider that senior management clearly understood and knew the plaintiff had a mental health issue directly related to his work. These factors should have alerted the defendant to the real risk of the plaintiff suffering psychiatric harm.

152 I am satisfied that the defendant knew the plaintiff was not coping with his duties and that he was already suffering from more than the normal stresses associated with a demanding management position. Further, the defendant should have anticipated that allowing the plaintiff to return to work on 19 March 2007 without making enquiries about his health or providing the necessary support would lead to psychiatric injury.

6-10 July 2007 - the second major breakdown at the plant and the second incident with the plaintiff

153 On 6 July 2007 there was a major breakdown in the pit at the rendering plant. The plaintiff's evidence was that on Friday 6 July 2007 he worked approximately 10 hours, while on Saturday 7 July 2007 and Sunday 8 July 2007 he worked for a few hours.[196]

154 On 9 July 2007 he worked from 4.00am/4.30am until 3.30pm/4.00pm and then took several work calls at home that night. He said that he had difficulty sleeping that night as he thought about the breakdown and how to fix it.[197]

155 He had planned to take Tuesday 10 July 2007 off as a break, but was called by Joe Martello who asked him to come in as there was an issue Joe Martello had not previously come across.[198] He attended work to address the issue, before seeing Nurse Ryder to report left shoulder pain as well as light-headedness, exhaustion and a headache. He told her he was going to see Mandi Bryant and then go home as he had been overworked.[199]

156 The plaintiff then saw Mandi Bryant arriving in the parking lot and had a discussion with her in her office. His evidence was that he told Mandi Bryant he had only come in to help Joe Martello and was now going home as he was tired, light-headed and exhausted, and that he had not slept much the night before due to the break-down at the plant and phone calls. The plaintiff said that Mandi Bryant told him he could not go as the team needed him and told him he should follow the example of another employee, Brian Chaffy, and continue working despite being unwell.[200]

157 The plaintiff returned to work and subsequently blacked out when he went to check the levels at the 'DAF area'. A co-worker assisted him and called for Nurse Ryder and Richard Turner. An ambulance was then called and the plaintiff was taken to Dandenong Hospital.[201]

158 Mandi Bryant testified that she saw the plaintiff prior to the incident in his casual clothes and had a discussion with him where she said words to the effect that 'these are difficult times for all of us. You need to take a leaf out of Brian's book. You know that there are times when he's you know had the odd ache or pain, work needs to be done, you need to get on and do it'.[202]

159 At the time she was not in receipt of any medical documentation about the plaintiff being off work or certified as unfit. Mandi Bryant said she was not aware the plaintiff had any stress or psychiatric conditions.[203]

160 She stated was not aware the plaintiff had been working the hours alleged over the previous few days. The plaintiff had only complained about being a little bit tired and having a slightly sore left shoulder. Additionally, she stated she had received a complaint from Joe Martello that the plaintiff was not giving them the support they needed. In light of that, she asked him to stay on and provide support in a non-physical, managerial role.[204]

161 She signed a statement dated 26 September 2007 (Exhibit P14), and swore an affidavit on 19 June 2009 (Exhibit P15) to this effect.

162 Joe Martello's evidence was that on the day of the incident there was a dryer issue with restarting the plant.[205] When it was put in examination-in-chief that the plaintiff was not going to come in to work but Joe Martello had then contacted him about the dryer issue, Joe Martello stated that that would have been correct, but he could not recall the terms of the conversation.[206]

163 Joe Martello recalled he was subsequently on a break or upstairs, and when he came downstairs he discovered the plaintiff on the ground surrounded by a few people, including either Nurse Ryder or Richard Turner. An ambulance was called.[207]

164 Nurse Ryder's evidence was that at 7.30 am on 10 July 2007, the plaintiff came and saw her in relation to a left shoulder injury he had sustained a few days earlier.[208] Subsequently at 8.40 am that day she was called over to the rendering plant and discovered the plaintiff on the floor. The plaintiff complained of having chest pain.[209]

165 The plaintiff did not previously complain of chest pain to Nurse Ryder when he visited her at 7.30 am on 10 July 2007.[210] Nurse Ryder assessed the plaintiff and found his pulse to be normal and there was no sweating, but he seemed anxious and to be hyperventilating.[211] The plaintiff contacted Nurse Ryder the next day to advise her that he would have the next three days off. Nurse Ryder then rang the plaintiff in the days after the incident to ask what the results of the hospital tests were and he told her they were normal.[212]

166 The defendant submits that the court should accept Mandi Bryant's version of the conversation on 10 July 2007 as it is similar to the complaints that were recorded in Nurse Ryder's notes, being that the plaintiff was complaining of shoulder pain. It is submitted on behalf of the plaintiff that Mandi Bryant's account is inherently self-serving and improbable and the plaintiff's account of this encounter should be preferred. It is submitted that a person telling their supervisor they need to go home would not be trivialising the reasons for that need. It is submitted that there was further embellishment of Mandi Bryant's account to the court which formed no part of her more contemporaneous statements relating to these events in Exhibits P14 and P15. In particular, Mandi Bryant said that she had received a complaint that day from Joe Martello that 'he didn't feel [the plaintiff] was giving them support that they needed'.[213] This suggestion was not put to Joe Martello in cross-examination by counsel for the defendant and it is submitted that it should be rejected.[214]

167 I accept the plaintiff's version of the discussion he had with Mandi Bryant on 10 July 2007. By this stage Mandi Bryant had lost confidence in the plaintiff and took what he told her with a 'grain of salt'. Mandi Bryant's response to the plaintiff's request to go home is consistent with her response and approach on 21 February 2007.

168 The plaintiff did not return to work following 10 July 2007.

5 September 2007 - the plaintiff is made redundant

169 The plaintiff's evidence is that he submitted a WorkCover claim on 5 September 2007 and that he then subsequently received a redundancy letter. In examination-in-chief he stated he received the letter in the mail, but in cross-examination he stated he received it from Mandi Bryant at her office.[215]

170 He stated he submitted the WorkCover claim because he had discovered that the defendant was using his sick leave and annual leave while he had been away from work. His evidence was that when he told Mandi Bryant he would make a claim, she said they would make him redundant if he did.[216]

171 Gary Castricum's evidence is that he had conversations with Mandi Bryant about making the plaintiff redundant on the basis he was effectively only operating as a team leader, not a manager. Gary Castricum stated that the possibility of a WorkCover claim being made played no role in the defendant's decision.[217]

172 Mandi Bryant's evidence was that prior to 5 September 2007, she had never seen any medical certificates or any matter pertaining to WorkCover claims that had been submitted by or on behalf of the plaintiff, nor had she seen anything indicating that the plaintiff was suffering from anxiety, depression or any psychiatric injury. Nor had the plaintiff verbally told her about such issues.[218]

173 Mandi Bryant's evidence was that on 5 September 2007, she was on annual leave but attended work to prepare a redundancy letter for the plaintiff.[219] Mandi Bryant said that she had not arranged for the plaintiff to come in that day, nor was she aware he would.[220]

174 Mandi Bryant said she never told the plaintiff (or anyone else) not to put in a WorkCover claim and that such an issue was the employee's choice.[221]

The defendant's knowledge of the medical certificates and WorkCover certificates

175 The plaintiff's evidence is that he gave Mandi Bryant a WorkCover certificate of capacity dated 29 March 2007 to 12 April 2007 at the time he received it.[222] In addition, the plaintiff's evidence was that he gave to Mandi Bryant the certificate stating that he was unfit for any duties from 23 April 2007 to 27 April 2007 at the time it was issued.[223]

176 Mandi Bryant accepted that the plaintiff had provided general medical certificates following the 28 February 2007 incident, but denied receiving WorkCover medical certificates restricting the plaintiff's hours to 45 hours (at least until 5 September 2007).[224]

177 The WorkCover medical certificates are date stamped as received by the defendant on 5 September 2007.

178 The plaintiff's claim form states that the plaintiff first sent to the defendant medical certificates by fax on 19 or 20 July 2007, being after his final working day on 10 July 2007. The medical certificate with a relevant fax header identifying that it was sent from Movie Land was an ordinary sick leave medical certificate.[225]

179 Nurse Ryder's evidence is that it was the defendant's practice that WorkCover certificates went to her as she was the WorkCover return-to-work coordinator. She would then open a file and assess any restrictions and find suitable roles within certified restrictions.[226] Nurse Ryder said she did not receive a WorkCover medical certificate from the plaintiff and did not open a WorkCover file for the plaintiff.

180 Further, Nurse Ryder prepared a file note of a conversation she had with the plaintiff by telephone dated 27 July 2007. The note records: 'Joe contacted me this morning to advise me that:

• He had seen his Dr and he had been given a certificate to be off until 18th August.
• Also advised me that he was still not well.

• On enquiring about the certificate he had been given he stated it was certificate of capacity then confirmed that it also had Victorian WorkCover Authority printed on the certificate. He also said he [had] another form he had to do to send to us.[227]

181 I accept that the plaintiff did not provide the defendant with the two WorkCover certificates or WorkCover claim form until 5 September 2007.

(a) the plaintiff was involved in the planning of his job description as a manager, understood the demanding nature of the position, particularly the long hours and being on-call, and voluntarily and happily accepted the position;

(b) the condition of the rendering plant deteriorated in the period the plaintiff was manager due to the change in the way in which maintenance support was provided. The change from a permanent maintenance person to on-call/on-site maintenance services required the staff in the rendering plant, including the plaintiff, to take on more maintenance, and there were more breakdowns;

(c) the plaintiff worked long hours and was on-call. I accept that the hours were demanding and that due to the maintenance issues and staffing cuts they were more than what was anticipated in 2004. The increase in hours was ongoing and over a significant period of time, from when George Hardy left in late 2005/early 2006. I accept the plaintiff complained to senior management, Gary Castricum and Mandi Bryant, as well as Richard Turner, Nurse Ryder and Joe Martello about working excessive hours, the problems with maintenance and staff shortages. The complaints were made over a period of time and mostly from mid-2006 to late-February 2007;

(d) at some point in September or October 2006, the plaintiff made a request to Mandi Bryant and/or Gary Castricum that he be given a break from being on-call;

(e) Richard Turner had seen a deterioration in the plaintiff's disposition from mid-2006 onwards, to the extent that he spoke to the plaintiff directly and then to Mandi Bryant;

(f) Mandi Bryant and Gary Castricum separately observed the deterioration in the plaintiff's disposition from at least mid-2006 onwards;

(g) it was evident from late-2006 to July 2007 that the plaintiff was under pressure and not coping with his role, leading to the responsibilities for sales and maintenance being removed from him;

(h) even after the management of maintenance in the rendering plant was taken over by Skilled Engineering in March 2007, the plaintiff was required to attend to and deal with maintenance issues;

(i) Mandi Bryant knew or should have known that it was inappropriate to ask the plaintiff to attend the management presentation on 21 February 2007 on the basis that the plaintiff told her he had worked/been on-call attending phone calls regarding the plant breakdown over 26 hours;

(j) Nurse Ryder, Richard Turner and Mandi Bryant knew the plaintiff had insomnia associated with work stress, at the latest, by February 2007;

(k) Joe Martello had observed that the plaintiff had become withdrawn and that the plaintiff was working excessive hours in part due to the maintenance issues;

(l) the plaintiff fainted at work on 28 February 2007, following which Gary Castricum drove him home and discussed the plaintiff stepping down from his role as manager;

(m) Mandi Bryant referred the plaintiff to Jim Houston from EAP following Nurse Ryder advising her that the plaintiff was stressed and had insomnia that was work-related. Gary Castricum was aware the plaintiff had been referred to Jim Houston;

(n) the plaintiff was absent from work from 1 to 18 March 2007 and from 23 April 2007 to 27 April 2007. Mandi Bryant and Gary Castricum were aware that the plaintiff was taking this absence from work as a result of stress;

(o) the plaintiff told Mandi Bryant and Gary Castricum in April 2007 he was exhausted, run down and stressed;

(p) on 21 March 2007 Gary Castricum spoke to the plaintiff in an abrupt or inappropriate manner, referring to the plaintiff's stress leave, but subsequently apologised;

(q) the plaintiff was required to come into work when he was on sick leave on 26 April 2007 at Mandi Bryant's request to complete a report for Gary Castricum;

(r) Mandi Bryant called the plaintiff in approximately April 2007 and they spoke about the plaintiff looking after himself, time management, getting exercise and sleep, and leaving things at work;

(s) on 10 July 2007 Mandi Bryant required the plaintiff to stay at work even though he had worked extensive hours over the preceding weekend and on 9 July 2007 following a major breakdown at the plant. I accept the plaintiff told Mandi Bryant that he had only come in to help Joe Martello and that he was going home as he was tired, light-headed and exhausted, and had worked long hours;

(t) the plaintiff subsequently blacked out at work on 10 July 2007 and was taken to Dandenong Hospital;

(u) by February 2007, Mandi Bryant took the plaintiff's complaints and what he told her about how he was coping at work with 'a grain of salt'.[228] I accept that on 21 February 2007 and 10 July 2007 the plaintiff told Mandi Bryant he had worked long hours but she did not accept the plaintiff's explanation for wanting to leave work on those two occasions; and

(v) the plaintiff provided the defendant with the WorkCover capacity forms dated 29 March 2007 and 23 April 2007 and the WorkCover claim form dated 20 July 2007 (Exhibit D2) at the time of the redundancy on 5 September 2007 and not before.

183 The plaintiff refers to the High Court authority of Koehler v Cerebos (Australia) Ltd,[229] for the principle that the duty on an employer to take reasonable care to avoid the risk of psychiatric injury to an employee is not enlivened unless there are 'evident signs warning of the possibility of psychiatric injury'.[230]

184 The plaintiff submits that it is not 'psychiatric injury' itself that needs to be looked for, but rather that the alleged conduct of the employer was likely to result in 'mental anguish of a kind that could give rise to a recognisable psychiatric illness', relying on Gleeson CJ in Annetts v Australian Stations Pty Ltd.[231]

185 The plaintiff relies on Larner v George Weston Foods Ltd,[232] where the question of warning signs in relation to psychiatric injuries at work was explored.

186 The plaintiff submits that there is case law to support the following factors as constituting evident signs that an employee is at risk of sustaining a psychiatric injury:[233]

(a) frequent or prolonged absences that are uncharacteristic;[234]

(b) complaints of work-related health and psychological problems by the employee to a medical practitioner;[235]

(c) advice from a medical practitioner to the employer concerning the employee's psychological state as being connected to work duties;[236]

(d) impaired performance of work duties such that management should have become aware that the employee was carrying out his or her tasks inadequately;[237]

(e) absences from work that the employer is aware were due to psychological problems, particularly related to work;[238]

(f) absences from work so out of proportion to other absences as to warrant further inquiry;[239]

(g) express warnings or complaints from the employee to the employer that ought to place the employer on notice that the employee had a psychological issue or that there was a risk to the employee's psychological health as a result of the work the employee was performing or required to perform;[240]

(h) complaints about psychological issues by the employee to an on-site nurse;[241]

(i) an evident deterioration in the employee's psychological state as evidenced by a change in demeanour, personality or appearance; and[242]

(j) complaints about a lack of sleep.[243]

187 The plaintiff relies on the Queensland Court of Appeal case of Robyn Eaton v Tricare (Country) Pty Ltd[244] for the principle that there is a duty of care on the employer to take reasonable care to avoid psychiatric injury occurring to an employee arising from his or her employment in circumstances where it is foreseeable that 'there was a particular vulnerability for this employee, such that there was a risk that [he or she] would develop a psychiatric illness'.[245]

188 On the basis of the above legal submissions, the plaintiff submits that it was reasonably foreseeable to the defendant that there was a real risk, not one that was far-fetched or fanciful, of the plaintiff developing a psychiatric injury due to his workload after his attendance upon the on-site medical clinic on 26 February 2007 and after his return to work after a three week absence in March 2007. The plaintiff submits that the defendant owed the plaintiff a duty to take reasonable care to avoid the risk of a psychiatric injury to him due to his workload and the work-related requirements placed upon him.[246]

189 In relation to breach of duty, the plaintiff submits that the question for the Court to consider is what response a reasonable employer, in the circumstances, would have adopted to minimise the risk of psychiatric injury due to the plaintiff's workload.[247]

190 The plaintiff submits that a reasonable employer would have taken the following measures to minimise the risk:[248]

(a) heed the plaintiff's complaints about the excessive hours he was working and undertake an investigation into the complaint;

(b) assess the hours that the plaintiff had been working by examining the company's records and hold discussions with the plaintiff and other staff members;

(c) monitor the hours that the plaintiff was working on an ongoing basis;

(d) accept the plaintiff's views as to whether he was able to remain at work or not after working excessive hours;

(e) make enquiries of the plaintiff's treating doctor in relation to the condition for which the plaintiff had received medical certificates;

(f) reduce the hours that the plaintiff was working;

(g) in consultation with the plaintiff's treating doctor, place a limit on the hours that the plaintiff was working;

(h) relieve the plaintiff of his on-call duties;

(i) require the plaintiff to take leave if necessary; and

(j) provide the plaintiff with further staff resources which he had previously requested.

191 It is submitted that once the employer was on notice of the risk of psychiatric injury to the plaintiff, the defendant also had a duty to take care and be extraordinarily cautious in its dealings with the plaintiff due to his fragile psyche.[249]

192 The defendant notes it is well-established from cases such as Koehler that an employer owes an employee a duty of care to take all reasonable steps to provide a safe system of work.[250]

193 The defendant relies on Koehler to the extent that in cases where an employee is claiming damages in respect of psychiatric injury arising from an employer's negligence, a court must determine more than just whether the psychiatric injury to the employee was reasonably foreseeable.[251] It must consider whether psychiatric injury to the particular employee in question was reasonably foreseeable. As observed in Koehler, the nature and extent of the work done by the employee and any signs given by the employee are relevant factors in determining foreseeability.[252]

194 As J Forrest J summarised in Hardy, the following additional factors were found in Koehler to be relevant in determining the content and scope of the duty of care of the employer:

(b) the nature and extent of the employee's work;

(c) any signs from the employee concerned (for example, in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic); and

(d) an assumption that the employee taking on the employment is capable of doing the job.[253]

195 The defendant refers to Koehler and submits that it is distinguishable factually from the present matter on a number of grounds, particularly in the following respects:[254]

(a) the plaintiff in Koehler asserted to her employer that her work duties needed to change;

(b) the plaintiff in Koehler requested that her employer provide her with more time (she was working part-time) or more assistance to perform her work duties;

(c) the dispute in Koehler centred on the number of hours worked by the plaintiff.

196 Nevertheless, the defendant refers to the finding in Koehler that the psychiatric injury was not reasonably foreseeable on the basis that the plaintiff in that case had agreed to perform the duties that caused the injury and that the employer in that case had no reason to suspect that the plaintiff was at risk of psychiatric injury. The defendant submits that in the present case the same factual matrix arose, in that the plaintiff had agreed to engage in work hours that were potentially lengthy or beyond the norm, including being on-call 24 hours a day, in return for being promoted to the managerial position and obtaining the benefits of that position.[255]

197 The defendant refers to the statement of the majority in Koehler that:

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.[256]

198 The defendant further refers to the comments of Callinan J in Koehler expressing doubt that a term could be implied in an employment contract that imposed a duty upon an employer not to ask or require an employee to perform the amount of work duties that the employee has willingly agreed to perform. The defendant submits that such an approach should be adopted here, where the written contract did not include such an explicit term, the plaintiff agreed to take on the role of rendering plant manager and the work duties that entailed, and there has been no evidence or submissions as to an applicable industry standard.[257]

199 The defendant submits that the approach of Koehler in respect of the plaintiff's agreement to perform the work duties that caused the psychiatric injury has been adopted by numerous courts.[258] Further, the defendant relies on Larner to the extent that the Court of Appeal found that it was open to take into account the absence of evidence of an external standard which could be used to assess whether the plaintiff was required to 'overwork' as a relevant consideration.[259]

200 The defendant acknowledges that the plaintiff was required to work long hours, but submits that is not relevant to the legal test to apply, referring to the judgment of Beach J in Taylor v Haileybury.[260]

201 The defendant also briefly raises the failure of the plaintiff to call Jim Houston as a witness and refers to the principle from O'Donnell v Reichard.[261] The defendant seeks to rely on O'Donnell for the principle that the plaintiff's failure to call a certain witness, Jim Houston, should give rise to an inference against the plaintiff. The defendant's contention is that Jim Houston could have given evidence as to what was discussed at the meetings between the two following Mandi Bryant's referral of the plaintiff to EAP. Particularly, Jim Houston may have given evidence as to the nature of the plaintiff's condition at the time of the meetings, and whether he was suffering depression or anxiety, and if so, what were the causes.

202 In response, the plaintiff submits that there is no evidence that Jim Houston spoke to or contacted anyone about his confidential discussions with the plaintiff, and that in those circumstances no inference should be drawn against the plaintiff as it is unclear whose camp Jim Houston would be in.[262]

A duty to take reasonable care to avoid any foreseeable risk of psychiatric injury

203 An employer owes an employee a duty to take all reasonable steps to provide a safe system of work.[263] This includes a duty to avoid foreseeable risks of injury to the employee. An employer owes an employee a duty to take reasonable care to avoid any foreseeable risk of psychiatric injury to the employee arising from the circumstances of his or her employment.[264]

The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as anti-discrimination legislation.) Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant's case here, an employer's duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.[265]

the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.[266]

206 In Koehler, their Honours referred to Sutherland v Hatton,[267] and indicated that 'signs' from the employee can include 'express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic'.[268]

207 The authorities decided since the decision of Koehler pay particular attention to whether the employee has given signs of distress to the employer that might suggest a risk of psychiatric illness. The risk must be perceptible and a response of the employer to the perceived risk must have been required.[269]

208 For example, in Larner an employee was unsuccessful in a psychiatric injury claim. The Victorian Court of Appeal accepted the trial judge's findings that the employee did not give any indication of being vulnerable to psychiatric injury and that there was no reason for the employer to have appreciated that he was at risk of psychiatric injury in performing his duties.[270]

209 The Victorian Court of Appeal further elaborated on this principle in Larner:

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 [in Koehler]:

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...[271]

210 In Johnson v Box Hill Institute of TAFE,[272] J Forrest J described the principles to be derived from Koehler in the following way:

(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.

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

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

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

(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.[273]

211 Beach J in Taylor,[274] drawing on the judgment of Keane JA in Hegarty v Queensland Ambulance Service,[275] observed:

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

(b) Secondly, 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 of psychiatric injury 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 physical environment in which an employee works.

(d) Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attend 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 problem.[276]

212 Hindsight is not to be used in determining the content of the duty of care.

213 Work stress is not, of its own, an indicator that an employee is at risk of a psychiatric injury. Beach J in Taylor in a case where the plaintiff was a teacher stated:

Teaching, like other professions, is clearly a busy profession. As was said by a number of the witnesses, teachers (busy professionals with occupations of considerable responsibility) often complain about workloads. Undoubtedly, the same might be said of members of any profession. The short point is that while one might always be capable of constructing a case with hindsight about what might or might not have constituted a risk of excessive stress and/or a risk to mental health, nothing in the evidence in this case leads me to conclude that there was any basis, during the course of the plaintiff's employment, for the defendant to suspect that the plaintiff's mental health was at risk as a result of his workload.[277]

214 In Swan v Monash Law Book Co-operative,[278] John Dixon J noted in the context of determining the content of the defendant's duty of care that 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. In Swan John Dixon J considered that 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. His Honour noted that the plaintiff's complaints were not about the onerous nature of the tasks and that 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.[279]

Was there a foreseeable risk of psychiatric injury to the plaintiff?

The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.[280]

...

It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work... The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable.[281]

216 In Eaton McMurdo JA stated that 'it is now well known that although not everyone who is exposed to stress develops an illness, in an individual case that can occur'.[282]

217 As Nettle J has pointed out, 'reasonableness' is 'at the heart of the law of negligence'.[283] His Honour stated:

Reasonableness must be judged in light of contemporary social conditions and community standards, to which conceptions of legal responsibility need constantly to adapt.[284]

218 The concept of the reasonable person's ability to foresee a risk of psychiatric injury to a plaintiff may well adapt with growing community awareness of mental illness. However, as the plurality in Koehler indicated, some matters regarding what might make the risk of psychiatric injury reasonably foreseeable may require 'much deeper knowledge of the causes of psychiatric injury than whatever may be identified as common general knowledge'.[285]

defining the circumstances in which it is reasonable to require a person to have in contemplation, and take steps to guard against... emotional disturbance that may result in clinical depression requires the caution which courts have displayed.[286]

220 Reasonable foreseeability is considered at the duty, breach and causation stages of the negligence analysis, 'raising different issues which progressively decline from the general to the particular'.[287] When assessing whether a defendant owed a plaintiff a duty of care, the query is whether it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the defendant may result in damage of some kind to the plaintiff. In attempting to identify a breach of this duty, the query is whether it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff. Further, the remoteness test is only passed if the plaintiff proves that the kind of damage suffered was foreseeable as a possible outcome of the kind of carelessness by the defendant.[288]

221 In this case, in determining the content of the defendant's duty of care to the plaintiff, I will examine whether it was reasonably foreseeable that careless conduct of any kind on the part of the defendant could result in psychiatric injury of any kind to the plaintiff. At the breach stage I will examine whether there is proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause psychiatric injury of some kind to the plaintiff.

222 At this stage, I will assess reasonable foreseeability in terms of the content of the defendant's duty of care and any potential breaches of this duty.

223 In this case, the question is whether a reasonable employer, in the position of the defendant acting through senior management, Gary Castricum and Mandi Bryant, and staff, Richard Turner and Nurse Ryder whose duty it was to look out for the employees' health and safety, would at the relevant time, in early 2007 have foreseen that there was a risk of the plaintiff suffering a recognised psychiatric injury because of his workload.

224 Attention must be given to the nature and extent of work being done by a particular employee and to the signs given by the employee concerned.[289]

225 The plaintiff's contract of employment obliged him to have overall responsibility for the running of the rendering plant. This included working long hours and being on-call 24 hours a day, seven days a week. The plaintiff understood and happily accepted that the manager role involved long hours, being on-call and the overall responsibility of the rendering plant.

226 The employment contract and the Position Description did not specify the hours to be worked or the resources available to the manager to operate the rendering plant. The Position Description set out in broad terms the nature of the role, including expectations, and outlined a requirement that the manager show a high degree of flexibility while still aiming at reasonable overall expectations.[290] The Position Description and the oral evidence disclose an arrangement that had significant flexibility, with the capacity for the parties to discuss relevant matters.

227 When the plaintiff commenced in his role as manager in 2004, at least initially, he was enthusiastic, very hard working, positive and had a happy disposition.

228 The plaintiff's case was that the onerous workload was in breach of the defendant's duty of care to the plaintiff. The plaintiff submits that there were sufficient evident signs that it was reasonably foreseeable to the defendant that there was a real risk, not one that was far-fetched or fanciful or only evident with the benefit of hindsight, of the plaintiff developing a psychiatric illness due to his workload.

229 The plaintiff's workload was heavy. That is the job he chose to do at the time he commenced his role as manager with the defendant. At the time of his commencement there was no reason to suspect that the workload required of the plaintiff placed him at any risk of psychiatric injury. However, I am satisfied that by 28 February 2007 - following the plaintiff's collapse at work and his ongoing complaints about the inadequacy of the maintenance support, the staff shortages and his long hours and the plaintiff's presentation at work as withdrawn and not jovial and happy-go-lucky as he had initially been - senior management was on notice that the plaintiff might develop a psychiatric condition because of his working conditions.

230 In this case, even if the plaintiff agreed to perform the duties which it is alleged were a cause of his injury, the defendant had reason to suspect the plaintiff was at risk of psychiatric injury or a stress-related condition.

231 The plaintiff's repeated complaints and in particular the history he gave Nurse Ryder on 26 February 2007, coupled with his prolonged absence from work from 1 March 2007 to 19 March 2007, forewarned the defendant that there was a risk of psychiatric injury to the plaintiff as a result of his long hours and the perceived staff shortages, which precipitated the absence from work in March 2007.

232 By March 2007, the defendant ought to have known that the plaintiff had symptoms consistent with mental anguish or a psychological ailment requiring ongoing professional treatment and time off work. I have found that Mandi Bryant and Gary Castricum were aware that the plaintiff's absence from work in March 2007 was stress-related, and that they had observed the negative change in the plaintiff's demeanour. There was at this time a foreseeable risk of psychiatric injury to the plaintiff arising out of his work conditions.

233 In this case I accept that the plaintiff did not provide the defendant with the 29 March and 23 April 2007 WorkCover certificates of capacity which referred to the plaintiff suffering from anxiety and depression and recommended modified work duties. In effect the defendant's positon is that the plaintiff was away from 1 March 2007 to 19 March 2007, with a further week off in late April, and did not have any medical certificates for the period. Even though I accept that the WorkCover certificates were not provided to the defendant, the mere fact the defendant failed to make any enquiries about the nature of the plaintiff's prolonged absence from work where the plaintiff was regarded as a hardworking manager and where the plant was already reportedly understaffed beggars belief. The above facts should have forewarned the defendant that there was a risk of psychiatric injury to the plaintiff as a result of his working conditions and working hours by the end of February 2007 and when he returned on 19 March 2007.

234 In relation to the conversation between Mandi Bryant and the plaintiff on 10 July 2007 it is regrettable that the plaintiff's concern and request to go home was ultimately trivialised by Mandi Bryant and she did not accept what the plaintiff was telling her. This is despite the earlier information she had received from Nurse Ryder and Richard Turner regarding the prolonged uncharacteristic absence from work by the plaintiff from 1 March 2007 until 19 March 2007, the collapse on 26 February 2007 and having just been told the long hours the plaintiff had worked from 6 July to the morning of 10 July 2007.

235 I accept that the plaintiff wanted to continue in his role as manager in February 2007 until his redundancy in September 2007. The evidence in this case is that the plaintiff told Nurse Ryder and, senior management was aware, that he was not coping with his duties because of his work conditions. I accept that the plaintiff had additional stressors in his personal life, in particular those related to his daughter's rape. However, the evidence was not that the plaintiff was having personal difficulties that were affecting his work or ability to perform his work. This can be contrasted to Hegarty where the plaintiff never told his supervisors that he was not coping or managing with his duties or that he was having problems disassociating personal matters from the professional issues.[291]

236 Based on these findings, I consider that a reasonable person in the position of Gary Castricum and Mandi Bryant on 28 February 2007 would have realised the plaintiff was at risk, which was a significant risk, of sustaining a recognisable psychiatric illness because of the difficulties he was experiencing managing the rendering plant given the excessive hours, ongoing breakdowns and staff reductions, in addition to his presentation at work.

237 Following the plaintiff's collapse on 28 February 2007, there were sufficient evident signs to give the defendant notice that the plaintiff was at risk of developing a psychiatric condition because of his workload. There were additional evident signs when the plaintiff was away for three weeks in March 2007, when Gary Castricum on 21 March 2007 made reference to the plaintiff being on stress leave, and when the plaintiff told Mandi Bryant on the morning of 10 July 2007 that he had worked all night and requested to go home.

238 The abovementioned risk was reasonably foreseeable to Mandi Bryant and Gary Castricum from 28 February 2007 onwards.

If it was reasonably foreseeable that the plaintiff was at risk of suffering a psychiatric illness, what was the content of the defendant's duty?

239 The plaintiff bears the onus of establishing that, in the circumstances, the defendant was obliged to take steps to reduce or minimise the risk of him suffering a recognised psychiatric injury. I consider that the plaintiff has established that the defendant's duty did extend to taking steps to minimise the risk of him suffering psychiatric injury.

240 As Keane JA identified in Hegarty, the employer's task is to fulfil its duty of care while respecting the privacy of an employee:

The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. 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 the plaintiff's problems.[292]

241 In my opinion, a reasonable person, with the knowledge available to Mandi Bryant and Gary Castricum on 28 February 2007, would have considered the plaintiff's complaints about his excessive hours and:

(c) monitored the hours he was required to work;

(d) increased the staff in the rendering plant, as previously requested by the plaintiff; and

(e) provided the plaintiff with support and directed that he take any sick leave he required or time off work if he had worked particularly long hours.

242 A reasonable person would also have monitored his condition when he returned to work on 19 March 2007 and on 30 April 2007 and enquired from time to time about his wellbeing. A reasonable person in the defendant's position would also investigate the merits of the plaintiff's complaints and would not ignore those complaints or dismiss those complaints out-of-hand. These steps are matters of common sense.

243 The plaintiff in this case did not call expert evidence to establish an 'external standard' by which to measure the notion of overwork in the plaintiff's circumstances. However, as Ginnane J stated in Doulis v State of Victoria:[293]

Nor is there a need for some external standard against which to determine if Mr Doulis' work was unduly onerous, in circumstances where a reasonable person would have perceived that there was a risk that Mr Doulis would develop a recognised psychiatric illness.[294]

244 In Dr Whiteside's note dated 1 March 2007, he wrote that the plaintiff:

Fainted at work yesterday morning... Under a lot of stress lately, headache returned this morning about 0200. Family history of high BP and CVAs. Still feels a bit drowsy and dizzy. Feels on the edge all the time. Upset by little things. Feels he is overtired. Worked 91 hours at work last week. Always tired. Grandfather died aged 41 of stroke.[295]

245 The defendant did not lead evidence refuting the plaintiff's claims that he worked 91 hours that week. I accept that the plaintiff's hours were not formally fixed as manager, but that his hours typically ranged from 50 to 60 hours work per week. These hours increased when there were breakdowns in the plant. On any assessment, working 91 hours in a week is an example of overwork, as was the extensive hours the plaintiff was required to work after the February 2007 plant breakdown.

246 It is not necessary at this stage to determine whether the measures that the defendant should have taken to meet its duty of care would have been effective. It is only necessary to determine what the defendant should have done, and whether it did those things. Whether those things would have prevented or avoided deterioration of the plaintiff's psychiatric injury, is relevant to causation.

Did the defendant breach the duty of care it owed to the plaintiff?

247 It follows from what I have said above in relation to the existence and scope of the duty that there was a foreseeable risk of psychiatric injury to the plaintiff, which was not 'far-fetched or fanciful', at the end of February 2007. An assessment of the reasonableness of the defendant's response is required.

248 For the purpose of the breach enquiry, the primary issue is determining what response a reasonable employer confronted with the identifiable foreseeable risk of injury would have taken in relation to that risk, and then discerning whether the employer fell short of that response.[296]

249 In the discussion on breach of duty in Johnson,[297] J Forrest J referred to Nationwide News Pty Ltd v Naidu[298] and Spigelman CJ's comments on the nature of the psychiatric injury enquiry:

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.[299]

250 The Court of Appeal in Brown v Maurice Blackburn Cashman[300] 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 foresight of the risk of occurrence of injury of the type which the plaintiff allegedly suffered.[301]

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.

Second, it may be that notwithstanding the risk and availability of remedial measures, an employer acts reasonably by taking no steps. 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.[302]

252 As previously stated, from mid-2006 to late-February 2007 the plaintiff had complained to senior management, Gary Castricum and Mandi Bryant, as well as Richard Turner, Nurse Ryder and Joe Martello about working excessive hours. The change in the plaintiff's demeanour during this time had been noticed by all these witnesses. Further, Nurse Ryder and Mr Turner had raised the plaintiff's issues with Mandi Bryant. I also accept that around September or October 2006 and on a few other occasions the plaintiff complained to Mandi Bryant and Gary Castricum that he wanted a break from being on-call 24 hours a day, seven days a week.

253 By the end of February 2007 there was a reasonably foreseeable risk of psychiatric injury to the plaintiff arising out of his work conditions. Failing to modify the plaintiff's working conditions and reduce his hours of work on his return and refusing his request to go home in particular on 10 July 2007 gave rise to injury, or perhaps even further injury, to the plaintiff's mental state.

254 In summary, by the end of February 2007, the defendant should have been aware that:

(a) the plaintiff was overworked to the extent that he was stressed, had insomnia and was anxious;

(b) the plaintiff was at risk of suffering from a psychological condition; and

(c) this risk was related to the plaintiff's work and particularly, the ongoing long hours, the staff shortages and the constant breakdowns.

255 I am satisfied, that in accordance with the principles stated in Koehler, the defendant's duty of care required the defendant to take action by the end of February 2007 and that there was nothing in the contract of employment between the defendant and the plaintiff which precluded that duty of care. In addition, I am not persuaded that the type of considerations set out by Beach J in Taylor[303] are relevant to the circumstances of this case.

256 By this time, the defendant had enough information about the state of the plaintiff's mental health to have responded in a more supportive manner and to have taken further measures to investigate the plaintiff's concerns and put supports in place.

257 Ultimately, while Mandi Bryant denied disregarding the plaintiff's complaints that he was stressed and working excessive hours she agreed that she may have taken it with a 'grain of salt'. Regrettably, by the end of February 2007 Mandi Bryant did not consider the plaintiff's complaints as perhaps being genuine. As previously noted, she had expressed having 'personal reservations' about the 'alleged collapse' of the plaintiff on 28 February 2007.

258 Immediately after the plaintiff's collapse on 28 February 2007, Gary Castricum's response was to drive the plaintiff home and suggest he step down from the management role. Simply suggesting that the plaintiff was not up to the role as Gary Castricum did on 28 February 2007 and then doing no more to assess his workload was inadequate. Equally Mandi Bryant's failure to follow up or monitor the plaintiff after 28 February 2007 was not reasonable.

259 The defendant did not adequately monitor the plaintiff's workload on his return to work in March 2007. While the sales role and management of maintenance were taken from the plaintiff at this time, there was no proper assessment of the plaintiff's workload, the hours he was keeping, or the demands of the position. The evidence is that the defendant did not meaningfully reduce the plaintiff's hours or address the staff shortage on his return to work, despite his complaints to Mandi Bryant about this. The plaintiff was required to come in to work while on further sick leave in April 2007 to complete a report.

260 In an investigation report dated 4 April 2007, Richard Turner noted that the plaintiff's collapse on 28 February 2007 had been due to a medical episode. Mr Turner noted that the plaintiff had been referred to the EAP. The report was approved by Mandi Bryant and it was at Mandi Bryant's discretion to refer someone to the EAP psychologist. Richard Turner considered that the referral of the plaintiff to see psychologist Jim Houston was entirely appropriate on the basis of what Mr Turner had observed. Mandi Bryant also thought it was entirely appropriate that the plaintiff be referred for some psychological help.[304]

261 Even after seeing the EAP psychologist, the plaintiff still experienced considerable difficulties with his workload on his return to work in March and then April 2007. A reasonable person would not have simply referred the plaintiff to the EAP without properly monitoring the true extent of the plaintiff's workload. As Meagher JA stated (with Heydon JA and Ipp JA agreeing) in State of NSW v Coffey:[305]

there is High Court authority that merely to provide a service to be availed of at the will of the worker does not absolve one from performing one's duty of care to take reasonable steps to ensure that a safe system of work is in place'.[306]

262 In relation to the defendant's reliance on O'Donnell in relation to the failure to call Jim Houston, the evidence of Jim Houston would have been relevant in so far as it may have shed light on the nature and cause of the plaintiff's difficulties from mid-to-late-2006 onwards. Jim Houston may have been able to provide evidence on the plaintiff's condition at that time, including whether he reported suffering from anxiety or depression. Additionally, his evidence may have revealed the impact, if any, which the increased hours and pressure the plaintiff claimed to have been experiencing at work, were having on his condition.

263 However, as these reasons demonstrate, the precise origin of the plaintiff's condition is ultimately only of minor relevance. Rather, the key issue is whether and when the defendant was on notice that the plaintiff was at risk of psychiatric injury. The plaintiff was in a vulnerable position from mid-to-late-2006 onwards, and the defendant was on notice of this by March 2007, following the 28 February 2007 incident.

264 Therefore, although an inference may be drawn in respect of the plaintiff's failure to call Jim Houston as a witness, I find that such an inference is of limited benefit to the defendant's case.

265 On 19 March 2007, the plaintiff had just returned to work after the collapse on 28 February 2007. When the plaintiff discussed with Gary Castricum his concerns about his workload and the stress it was causing, Gary Castricum's response was unsupportive and failed to acknowledge the plaintiff's genuine concern and the impact it was having. Notwithstanding his subsequent apology, this response was sufficiently inadequate and inappropriate. I consider that by the time the plaintiff returned to work in March 2007, a reasonable person in Gary Castricum's position would have realised that the plaintiff was at risk of psychiatric harm. While the defendant took some measures, it did not go far enough to prevent that risk from eventuating.

266 A reasonable response to the plaintiff's risk of psychiatric harm by 21 March 2007 would have been to take the plaintiff's complaints seriously. A reasonable person in the position of the defendant, would have:

(a) put in place measures to prevent the plaintiff working excessive hours when he returned to work on 19 March 2007; and

(b) set certain hours during the week during which the plaintiff would be relieved of oncall duties.

267 Further, a reasonable person in the defendant's position would have put a plan into action with the plaintiff which may have included removing him from the managerial role.

268 While the defendant removed some aspects of the maintenance role in February 2007, there is little evidence to suggest that maintenance responsibilities were taken away from the plaintiff to prevent the risk of psychiatric harm to him. Even if it were to be perceived that way, the defendant did little else to prevent the risk of psychiatric injury to the plaintiff on his return to work on 19 March 2007. The evidence is equivocal as to what difference removing maintenance responsibilities made to the plaintiff's day to day workload or need to attend when there was a breakdown. The very fact of breakdowns caused stress to the plaintiff. Even if the responsibility for maintenance fell to another person/company, breakdowns affected the plaintiff's workload.

269 On the plaintiff's return to work in March 2007, Mandi Bryant and Gary Castricum did not monitor or enquire about his medical condition or well-being. Nor did they monitor his work hours.

270 On 10 July 2007, a reasonable person in the position of Mandi Bryant would have taken the plaintiff's request to go home seriously and would have determined that the plaintiff was at risk of psychiatric injury. Telling an employee who has worked overnight to keep working is not a reasonable response to that risk. Some observers may even describe Mandi Bryant's response as callous. I find that a reasonable person in the position of the employer, an employer of approximately 400 employees, would have taken the plaintiff at his word and would have let him go home early. It is worth reiterating that the plaintiff subsequently collapsed at work on that day.

271 Had the defendant put in place measures following the plaintiff's conversation with Gary Castricum on 21 March 2007 to prevent the plaintiff working excessive hours, it would have prevented the plaintiff from excessive hours following the 6 July 2007 breakdown in the plant. Further, had these measures been put in place, Mandi Bryant would have been alerted to the need to be extraordinarily cautious in her handling of the plaintiff on 10 July 2007. Had proper measures been put in place, Mandi Bryant would have taken the plaintiff's complaint seriously on 10 July 2007 and sent him home.

272 The defendant had from 21 March 2007 to put in place measures to prevent the plaintiff working excessive hours. The defendant breached its duty to take reasonable care to avoid any foreseeable risk of psychiatric injury to the plaintiff by: a) not putting in place measures to prevent the plaintiff working excessive hours from 28 February 2007 onwards, and; b) telling the plaintiff to keep working on 10 July 2007.

273 Whether the plaintiff's conversation with Gary Castricum on 21 March 2007 and conversation with Mandi Bryant on 10 July 2007 at all contributed to the plaintiff's condition remains a live issue and will be addressed in any subsequent trial dealing with causation. At this point I am not required to consider causation and whether or not other responses would have made any difference to the plaintiff's behaviour and any psychiatric injury.

274 I consider the defendant breached its duty of care to the plaintiff.

275 I will hear the parties in relation to the future hearing of this matter.

[1] Transcript of proceedings, Joseph Roussety v Castricum Brothers Pty Ltd (Supreme Court of Victoria, S CI 2012 6305, Zammit J, 6 June 2016) ('T') 518, lines ('LL') 7-12.

[2] Plaintiff's statement of claim, 2 [4].

[6] T 70, LL 14-19; T 71, LL 5-7; T 74, LL 13-24; T 280, LL 14-30; T 281, LL 9-10.

[16] Exhibit P1, in the position of rendering plant operator; T 27, LL 29-30; T 29, LL 5-6.

[17] T 29, L 31; T 30, LL 1-4; T 111, LL 24-28.

[28] T 79, LL 24-31; T 80, L 1; T 155, LL 21-25.

[35] T 36, LL 30-31; T 37, L 1; T 80, LL 2-4.

[41] T 79, LL 18-23; T 80, LL 2-26; T 114, LL 5-7.

[43] T 116, LL 29-31; T 117, LL 1- 24, 29-31; T 118, LL 1-9, 27-31.

[44] T 37, LL 6-12; T 141, LL 18-20; T 174, LL 9-28.

[61] T 283, LL 20-25; T 284, LL 26-31; T 387, LL 22-25; T 388, LL 1-4.

[79] T 72, LL 14-25; T 74, LL 18-31; T 75, L1; T 116, LL 7-21.

[83] Defendant's written submissions, 8 [28].

[86] T 185, LL 4-17, 22-31; T 186, LL 1-2.

[93] Defendant's written submissions, 8 [29].

[100] T 493, LL 25-27; T 494, LL 8-14.

[106] T 113, LL 16-27; T 114, LL 12-14.

[111] Defendant's written submissions, 8 [28].

[114] T 426, LL 6-14; T 427, LL 13-16; T 428, LL 8-17

[116] T 469, LL 22-29; T 470, LL 17-18.

[117] T 470, LL 7-9; T 477, LL 11-14; T 481, LL 4-11.

[150] T 295, LL 1-6, 15-31; T 296, L 1.

[154] T 212, LL 24-31; T 213, LL 1-11.

[170] T 322, LL 19-22; T 335, LL 4-7, 21-26.

[175] T 90, LL 26-31; T 91, LL 1-10; T 92, LL 14-19.

[177] T 297, LL 22-29; T 326, LL 18-22.

[179] T 326, LL 15-17; T 334, LL 10-17.

[181] T 424, LL 30-31; T 425, LL 1-12.

[184] T 148, LL 22-31; T 166, LL 5-12, 27-28.

[185] T 285, LL 1-5; T 289, LL 15-19; T 334, LL 28-31.

[187] T 300, LL 11-15; T 336, LL 13-24.

[188] T 429, LL 25-31; T 430, LL 1-11.

[190] T 469, LL 22-31; T 470, LL 1-11; T 476, LL 2-8, 13-30; T 477, LL 11-14.

[194] T 359, LL 7-9; T 362, LL 1-3; T 393, LL 7-10; T 423, LL 22-29; T 424, LL 15-20, 24-26; T 461, LL 25-29; T 464, LL 9-12.

[195] For the measures a prudent employer would have put into place, see [266]-[267].

[197] T 53, LL 28-31; T 54, LL 1-8; T 79, LL 1-3.

[198] T 54, LL 12-20, 25-27; T 55, LL 1-8.

[199] Exhibit P5; T 55, LL 9-18, 29-31; T 56, LL 1-4.

[200] T 56, LL 6-14, 20-31; T 57, LL 1-11.

[202] T 399, LL 13-28. (Note: Brian is a reference to a fellow employee Brian Chaffy, misspelled as Chappy in the transcript).

[203] T 399, LL 29-31; T 401, LL 30-31; T 402, L 1.

[204] T 433, LL 1-7, 13-17; T 449, LL 29-31; T 450, LL 1-7; T 462, LL 16-24, 27-30; T 463, LL 17-21.

[209] T 356, LL 18-25. See also Exhibit D4.

[214] Plaintiff's Outline of Submissions dated 15 June 2016, 14 [34].

[215] T 62, LL 29-30; T 63, LL 3-5; T 135, LL 18-29; T 136, LL 17-21.

[218] T 393, LL 7-10; T 461, LL 25-29; T 464, LL 9-12.

[219] T 393, LL 3-6; T 396, LL 19-26; T 440, LL 22-31; T 441, LL 1-7.

[224] T 423, LL 23-29; T 424, LL 15-26; T 429, L 7-15.

[225] Exhibit P 7; T 139, LL 17-31; T 140, LL 1-4.

[229] ('Koehler') (2005) 222 CLR 44.

[230] Ibid 57-58 [36]; Plaintiff's Supplementary Legal Submissions (undated), 1 [2].

[231] [2002] HCA 35; (2002) 211 CLR 317, 338 [41].

[232] ('Larner') [2014] VSCA 62.

[233] Plaintiff's Supplementary Legal Submissions, 2-3 [5].

[234] Koehler (2005) 222 CLR 44, 54-55 [24].

[235] Hardy v Mikropul Pty Ltd [2010] VSC 42 ('Hardy'), [169], [228]; Johnson [2014] VSC 626 [273].

[236] Hardy [2010] VSC 42 [228].

[237] Ibid [199]; Doulis v State of Victoria [2014] VSC 395 [544].

[238] Hardy [2010] VSC 42 [203].

[240] Taylor v Haileybury [2013] VSC 58 [108]; cf. Koehler (2005) 222 CLR 44, 54-55 [10], [24].

[241] Larner [2014] VSCA 62 [212].

[242] Robyn Eaton v Tricare (Country) Pty Ltd [2016] QCA 139 [33]; Doulis v State of Victoria [2014] VSC 395 [537], [557]; cf. Koehler (2005) 222 CLR 44, 65 [56].

[243] Doulis v State of Victoria [2014] VSC 395 [538].

[244] ('Eaton') [2016] QCA 139.

[245] Ibid [35]; Plaintiff's Supplementary Legal Submissions, 3 [6].

[246] Plaintiff's Supplementary Legal Submissions, 3 [7].

[249] Ibid 4 [10]; Johnson [2014] VSC 626 [437]-[438].

[250] Koehler (2005) 222 CLR 44, 53 [19].

[251] T 534, LL 3-6; (2005) 222 CLR 44, 54 [23].

[252] T 525, LL 8-14; Koehler (2005) 222 CLR 44, 57 [35].

[253] Hardy [2010] VSC 42 [24]-[26], [35]-[36].

[255] T 523, LL 18-31; T 524, LL 1-29.

[256] Koehler (2005) 222 CLR 44, 56 [29].

[257] T 526, LL 24-31; Koehler (2005) 222 CLR 44, 65 [57].

[258] [2014] VSCA 62 [206]; Taylor [2013] VSC 58 [112].

[259] [2014] VSCA 62 [223].

[260] ('Taylor') [2013] VSC 58 [109]; T 527, LL 13-25.

[261] ('O'Donnell') [1975] VicRp 89; [1975] VR 916; T 541, LL 28-31; T 542, LL 1-5.

[263] Koehler (2005) 222 CLR 44, 53 [19] (McHugh, Gummow, Hayne and Heydon JJ).

[264] Box Hill Institute of TAFE v Johnson [2015] VSCA 245 [44] (Warren CJ, Hansen and Kaye JJA) (citations omitted).

[265] (2005) 222 CLR 44, 53 [21] (McHugh, Gummow, Hayne and Heydon JJ).

[266] Ibid 57 [36] (citations omitted).

[267] [2002] EWCA Civ 76; [2002] 2 All ER 1.

[268] Koehler (2005) 222 CLR 44, 54 [24] citing Sutherland v Hatton [2002] EWCA Civ 76; [2002] 2 All ER 1, 14 [25].

[269] Doulis v State of Victoria [2014] VSC 395 [520].

[270] Larner [2014] VSCA 62 [211]-[212].

[271] Ibid [205]-[207] (citations omitted).

[272] ('Johnson') [2014] VSC 626.

[273] Johnson [2014] VSC 626 [406] (citations omitted).

[274] [2013] VSC 58.

[275] ('Hegarty') [2007] QCA 366.

[276] [2013] VSC 58 [116].

[278] ('Swan') [2013] VSC 326.

[280] Koehler (2005) 222 CLR 44, 57 [33].

[281] Ibid [34], [35] (emphasis in original).

[282] Eaton [2016] QCA 139 [34].

[283] King v Philcox [2015] HCA 19 [92]; citing Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35 [14].

[284] King v Philcox [2015] HCA 19 [92].

[285] (2005) 222 CLR 44, 54 [24] (McHugh, Gummow, Hayne and Heydon JJ).

[286] Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 [15].

[287] Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSW Law Reports 268, 295-6 (Glass JA).

[289] Koehler (2005) 222 CLR 44, 57 [35].

[291] Hegarty [2007] QCA 366 [60].

[293] [2014] VSC 395.

[296] Johnson [2014] VSC 626 [422]; citing Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461 [124]-[126].

[298] [2007] NSWCA 377; (2007) 71 NSWLR 471.

[299] Ibid [20] and [23] (emphasis added).

[300] [2013] VSCA 122 [200].

[302] Johnson [2014] VSC 626 [426]-[427] (citations omitted).

[303] [2013] VSC 58 [116].

[305] [2002] NSWCA 361.

[306] Ibid [13] citing Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.