Swan v Monash Law Book Co-operative [2013] VSC 326

2 The defendant, Legibook, operates a specialist law book co-operative from the basement of the law building at Monash University. At relevant times it employed two permanent part time workers, a manager and an assistant. The plaintiff, Wendy Swan, was employed as the assistant between 2002 and October 2008. Mr Kriston Cowell was employed as manager between 2002 and 2007. He was alleged to be responsible for the bullying, harassing and intimidating conduct.

3 As a co-operative, Legibook was a not for profit organisation that sold law books at discounted prices to law students. It was operated by a board of directors comprising current and former students at Monash University Law School. The chairman of the board at relevant times was Mr Paul Somers. Mr Somers had been a director of Legibook since 1997, first as a law student and, from 2001, as a solicitor.

4 The following issues remain to be resolved in this proceeding:

(1) was there conduct on the part of Mr Cowell that constituted bullying, or harassment, or abuse, or humiliation, or intimidation of the plaintiff ('Mr Cowell's conduct').

(2) By reason of the occurrence of Mr Cowell's conduct, was there conduct on the part of the defendant that was in breach of the defendant's duty of care (as alleged and admitted in paragraph 4 of the pleadings) in that the defendant failed to take reasonable care for the safety of the plaintiff in her employment by the defendant?

(3) In what particular respect, having regard to the allegations in paragraph 5 of the statement of claim, did the defendant fail to exercise reasonable care ('the conduct in breach')?

(4) Was any conduct in breach a cause of the plaintiff's injury?

(5) What is the nature and extent of the plaintiff's injury and her disabilities?

(6) Did the plaintiff suffer pre-existing psychological problems that are a cause of her injury, and if so, to what extent?

(7) In what sum should the court assess the plaintiff's pain and suffering damages?

(9) In what sum should the court assess the plaintiff's:

5 I will deal separately with the evidence about what happened and the evidence of its effect on the plaintiff. On liability issues, the significant evidence came from the plaintiff, Mr Cowell, and Mr Somers. Also relevant is the evidence of Mr Jensen, who was initially employed as a workplace mediator, but later investigated, and reported on, the plaintiff's complaints. I will start with my findings on some general background matters.

6 The plaintiff, who is married, was born on 15 May 1954. She qualified as a dental nurse after leaving school but spent much of her working life self-employed in businesses run with her husband. In July 2002, she successfully applied for a position as a retail-sales assistant with Legibook. There was no formal contract of employment or applicable job description. The advertisement to which she responded stated that she would be primarily responsible for book sales and customer service. Other responsibilities would include managing returns of unsold stock, administering the co-operative's membership database and otherwise assisting the manager alongside whom she would work.

7 Her position was permanent part time and although the hours of work varied during the course of the year, particularly during the peak periods at the beginning of each semester, the plaintiff ordinarily worked Mondays, Tuesdays and Thursdays from 8.30 am to 1.30 pm and Wednesdays from 12.30 pm to 5.30 pm. During the initial interview, at which Mr Cowell was present, the board members told the plaintiff that she was employed by the board to work side by side with the manager who would run the business as directed by the board.

8 The business operated out of small, cramped quarters in the basement of the Law Department building at Monash University. Legibook used one computer to operate a financial management and accounting software system, Quicken, and a member's database program. The computer had some password controls. Although a generic password known to all was used for initial access to the computer, Mr Cowell had his own password for access to Quicken and the plaintiff used a personal password to access the membership database files. In 2002, the board was keen to modernise the office and create and update its membership as a computerised database. The board specifically allocated the latter task to the plaintiff.

9 Both Mr Cowell and the plaintiff served customers, originally using a manual till. Later, Legibook installed point-of-sale tills, networked with a new computer. Usually, Mr Cowell would reconcile the day's takings and either he or the plaintiff would attend to the banking.

10 Over the first eight months of her employment, the plaintiff spent a significant proportion of her time at the computer creating the new database of 12,000 members.

11 Stock mostly arrived at a loading bay at the far end of the law building and was transported to the bookroom by a trolley. It was stored on shelving and stacked on available floor space. Legibook transacted most of its business at the start of each semester when students acquired their textbook and lecture notes for the subjects they were about to study. Following the initial lectures in any particular subject, students attended the bookroom to purchase what they needed or were recommended; hence the episodic nature of the bookselling. To assist, Legibook employed additional casual staff at this time. For the employees, the initial weeks of each semester were more stressful than the remainder of the working year.

12 Mostly, there was not a great deal of conflict in the evidence, particularly between the plaintiff and Mr Somers. Mr Somers had a habit of contemporaneous note taking and often had no recollection beyond that recorded in his notes or emails. I found each of Mr Somers and Mr Jensen to be truthful witnesses who mostly resisted any temptation to reconstruct a recollection of events when memory or note taking may have failed them.

13 There was direct conflict between the evidence of the plaintiff and Mr Cowell. I preferred the evidence of the plaintiff to that of Mr Cowell whenever there was conflict between them that could not be resolved by reference to other evidence for the following reasons.

14 The physical environment at Legibook was far removed from that of the courtroom in which the protagonists recounted the relevant events. I watched and listened carefully to the evidence of each of the plaintiff and Mr Cowell, fully expecting that the manner in which each of them would interact with counsel would not provide direct guidance about their interactions with each other in the workplace. In some instances, it was the fact of what occurred between the plaintiff and Mr Cowell that was significant. In other instances, what was done or what was said was, of itself, relatively innocuous and its significance arose from the tone and body language of the speaker or the perception of an event that was experienced by one party or intended by the other.

15 Because the gravamen of many of the plaintiff's complaints about Mr Cowell's conduct lay more in the demeanour used, the vocal tone employed and the body language that accompanied the stated words or activity, than in the words or activities themselves, the evidence given in court was not necessarily determinative, and there were a number of other important considerations.

16 The affect of the plaintiff, which was described by psychiatrists reporting on their mental status examinations, was evident during the course of the plaintiff's evidence. This was a matter that I considered in my evaluation of her evidence from the witness box. The psychiatric assessment of the plaintiff was that she suffered 'a breakdown' in July 2007. I am satisfied that she presented differently in the workplace before that breakdown. Mr Somers described her as having a 'bubbly personality', and a capacity to converse enthusiastically across a range of topics, not limited to issues at work. The plaintiff's husband also described the plaintiff, prior to July 2007, as bubbly and lively, caring, and readily able to relate to, and converse with, family, friends and acquaintances alike.

17 The change in the plaintiff's presentation since July 2007 was relevant to considering both her presentation in court and the defendant's evidence of his perceptions of her conduct in the bookroom. Secondly, her capacity to confidently present her recollection of events in the stressful environment of a court room was affected by her injury. Third, I was satisfied that she has recounted the circumstances that occurred at work on many occasions out of court, including, first when informing Mr Somers of her concerns at the time, second when recounting events to lawyers, third, when answering the inquiries of medical treaters and examiners.

18 I did not find her recall in the witness box to be complete. I have made some allowance for the plaintiff's present disability, which has affected her since 2007. I carefully evaluated various out of court statements; as such statements although admitted into evidence were not always adopted as true from the witness box. Mostly, contemporaneous emails and letters were adopted by witnesses as were some other documents that provided histories. Various statements and affidavits that were used to instruct experts were tendered without objection. These documents are evidence of the facts they record. The area of contention lay in statements recorded in medical reports that were mostly read to the court by agreement. Commonly, the plaintiff accepted that she discussed her work circumstances with doctors and others without any present recall of what she said. She did not adopt the histories recorded by doctors as complete, and could not dispute inconsistencies.

19 I was invited by the defendant to accept that the recorded histories accurately reflected what the plaintiff told the author at the time of examination or consultation. This submission was directed at inconsistencies and incompleteness in the recorded histories. The singular example was the absence of any reference to the book throwing incident in all of the medical histories, supporting a submission that I will discuss in due course that the plaintiff was not a credible witness and that the evidence of Mr Cowell is to be preferred.

20 In the absence of oral evidence from the authors, I decline this invitation, in its absolute sense, for two reasons. First, authors of medical reports balance a number of considerations when recording histories, ranging from their interest in peripheral detail to time pressures. They receive earlier reports that usually contain histories that may, or may not, be copied, at least in part. The reliability of the note taker cannot be assumed and the words of the plaintiff cannot, with confidence, be fully identified when an author has not been cross-examined about the circumstances of the consultation and the compilation of the report. Second, the plaintiff is also affected by various considerations when giving a history. Was the history elicited by leading questions, limiting the scope of revelation of all detail? Was the plaintiff's recall affected by any of her medical or psychiatric conditions? Was the plaintiff medicated? In the present case, it is clear that the plaintiff experienced unacceptable side effects from depression medication and changed prescription several times. It is unsurprising that the plaintiff no longer recalled all of the detail that is recorded by others. I am satisfied that the plaintiff was a truthful witness endeavouring to do her best to recount the minutiae of events over a five year period.

21 Mostly there is no reason not to accept detail given in histories that was unchallenged or to conclude, from the failure of the plaintiff to give evidence in court, of some particular detail, that it did not occur. When evidence of a previous representation by the plaintiff giving that detail has been admitted, s 60 of the Evidence Act (Vic) 2008 is enlivened, having the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded.[1] I have had regard to that source of evidence in making my findings.[2] I am satisfied that, mostly, the medical, and other histories in evidence support the plaintiff. Where they do not, inferences that are not adverse to the plaintiff's credit are open.

22 I am satisfied that, unlike the plaintiff and Mr Somers, when Mr Cowell could not recall matters he was more likely to reconstruct events in his favour. Mr Cowell did so on two occasions of particular significance, which when weighed with the matters generally noted, caused me to reject his evidence, although at times in the witness box he appeared confident and consistent in his recounting of events. I reject his denial that the book throwing incident occurred, for reasons that I will explain in context when dealing with the evidence of that incident. I also reject his version of the events on 23 and 24 July 2007. I will first deal with matters as they occurred between the plaintiff and the board.

23 First, I make some general findings. I find that from the outset the board engendered the plaintiff's belief that she was Mr Cowell's colleague, an employee of equal worth, entitled to be treated with proper respect and dignity. It did so because it genuinely held that view until at least July 2007. The job advertisement stated the assistant would work side by side with the manager, which was confirmed in the interview for the position. The board told the plaintiff that in the two employee bookroom, the board would give directions primarily to the manager on how Legibook was to be run. The plaintiff would have primary responsibility for upgrading the membership database. Legibook had a very old computer and very old systems, a legacy from the previous long standing manager, and the board was going to modernise. Both the plaintiff and Mr Cowell were to be responsible for implementing a better modernised service to co-operative members.

24 I am satisfied that the plaintiff, while believing that to the defendant she and Mr Cowell were colleagues of equal worth, also always understood that Mr Cowell was the manager and she was the assistant. She never aspired to be the de facto manager. I accept that in self-employment she had worked seven days a week for a long time and had previously engaged in managerial and administrative roles. In contrast to her role in the family business, the plaintiff intended, and tried, to go to Legibook, do her job to the best of her ability and then go home and forget about it. In that context, she accepted that the board was open to suggestions from her about the operation of the bookroom. The differing notations of this status - was Mr Cowell a manager or a colleague - made by medical practitioners taking histories, of which much was made at trial, is in this sense explicable.

25 The plaintiff was invited to make suggestions to the board about matters concerning workplace contracts, practices, and processes in the operation of the business of the bookroom, to attend board meetings, an annual dinner of the co-operative, and social dinners with the directors. Each was an occasion for the processes and operations of the bookroom to be discussed, and the plaintiff was never discouraged from participating in such discussions. Mr Cowell did not appreciate that the board had extended that invitation to the plaintiff as I will explain. As time went on, Legibook and its directors demonstrated to the plaintiff in various ways that she was regarded as a valuable employee who contributed to the running of Legibook and a colleague of Mr Cowell, of equal worth.

26 The defendant invited me to find that the plaintiff stepped above her role as an assistant and meddled in Mr Cowell's role as manager, which entitled him to respond with instruction. The inference to be drawn was that any stress that followed on this conflict came as a result of the plaintiff's personality and attitude and was not occasioned either by Mr Cowell's conduct or the workplace maintained by the defendant. I do not accept that this is an accurate characterisation of what occurred. I am satisfied that there was discord between the board's approach, valuing constructive suggestion from the plaintiff, and Mr Cowell's more authoritarian managerial style. For the plaintiff, this discord was unsettling and confusing, productive of workplace stress. The form and nature of Mr Cowell's reaction to that stress was inappropriate, as I will explain. That discord did not entitle Mr Cowell to be sarcastic, belittling, rude and hostile in his attitude to the plaintiff. I consider the circumstances that developed followed from the board's failure to have proper position descriptions and workplace policies in place and to properly monitor relations between Mr Cowell and the plaintiff. Such monitoring was likely to have revealed to the board that relations between its two employees were not as they would have liked. It was not until after the first pressure period in the bookroom, the opening weeks of the first semester of 2003, that the board first learned of conflict between Mr Cowell and the plaintiff.

The plaintiff's complaints and Legibook's response

27 On 19 March 2003, the plaintiff telephoned Mr Somers and informed him of what he described to other board members as 'conflict' that she was experiencing with Mr Cowell. She told Mr Somers that Mr Cowell's conduct was very strange, that she had concerns about it, and that on one occasion Mr Cowell threw a book at her. On another occasion he threw a calculator. She described him as moody. She considered that he was suspicious that she was trying to move into a managerial role in the bookshop. Mr Cowell appeared to treat Legibook as his personal toy, but he made mistakes in its operation such as forgetting to pay her on time. She helped cover up these mistakes by not complaining. Mr Cowell neither acknowledged her assistance nor apologised for his mistakes. The plaintiff told Mr Somers that temporary staff had informed her they were surprised by comments that Mr Cowell had made to her. She told Mr Somers that she enjoyed her job and wanted to continue to work at Legibook.

28 Mr Somers promptly scheduled a meeting of the board.

29 The minutes of a confidential board meeting on 25 March 2003 record Mr Somers relating the plaintiff's concerns to members of the board, adding that he was awaiting written particulars from the plaintiff. Significantly, the board minuted that Mr Cowell's behaviour could cause damage to the plaintiff, which is evident from the observation recorded in the minutes that 'the board and co-operative may be vicariously liable for Kris' behaviour' and this 'would include Workcover claims'.

30 The minutes record that the board was keen to be seen to be doing something about the plaintiff's complaint and discussed implementing written position descriptions. The board had rightly identified their own lack of clarity in identifying the respective roles of their employees as a factor in the plaintiff's complaint. The board resolved that violent behaviour in any form was not acceptable and if it was in fact taking place the board should act to ensure that it did not continue. It resolved that three board members, Mr Somers, Mr Wong and Mr Fowles, meet with the plaintiff to discuss the substantive issues before a mediation between the plaintiff and Mr Cowell to be conducted on 17 April 2003. No such mediation was arranged.

31 On 28 March 2003, in response to Mr Somers' invitation to particularise her concerns in writing, the plaintiff wrote to him raising three distinct issues. First, she submitted a list of 17 topics which can broadly be described as employment or industrial relations issues that she suggested might be discussed at board level. Second, she raised five issues, described as 'food for thought' about improving the organisation and future operation of Legibook's business. Third, she addressed her concerns about Mr Cowell.

32 The plaintiff stated that she had been working under very strained conditions for the past months, that Mr Cowell was a person who provided information to her on a need to know basis or not at all, and that she did not wish to feel threatened or uncomfortable in her workplace. In particular, the letter stated:

I do not wish to be continually subjected to sarcasm, hostility, rudeness, and violent behaviour, threat of termination or lack of consultation within the workplace.

The plaintiff concluded the letter by stating that she enjoyed her work and felt most problems could be solved or managed to create a harmonious workplace. She added a handwritten note to her letter that 'things are much better with Kris at the moment, so none of this is urgent'. This was a reference to the passing of the stressful busy opening weeks of first semester.

33 Mr Somers promptly sought comment from board members to the plaintiff's letter. Mr Somers observed that 11 of the 17 items raised on the first issue related to employment contracts. As the drafting of employment contracts had lapsed, he proposed to revive it and have draft contracts available for board consideration. Mr Somers observed that the remaining employment issues were appropriate for discussion at board level.

34 During the trial it was suggested to the plaintiff that she had a tendency to inappropriately interfere in matters that were not within the role of a retail sales assistant, but there is no evidence of this attitude on the part of board members at any time before July 2007. If it were the case, as Legibook maintained at trial, that the plaintiff was exceeding the limits of her position, the board at no time encouraged the plaintiff to a different view of her role as an assistant, such as that taken by Mr Cowell. Not one member of the board commented that the plaintiff went beyond her role in making suggestions to the board about employment and operational issues. To the contrary, I am satisfied that the operation of the bookshop under its former long serving manager was thought to be somewhat stagnant and the board was not only open to, but encouraged, suggestions from its two permanent staff about improvement of services.

35 Board members agreed with Mr Somers' observation that 'suggestions that staff at Legibook are subject to workplace sarcasm, hostility, rudeness and violent behaviour, threat of termination are unacceptable'. In particular, 'violent behaviour' needs immediate clarification and, if warranted, some action. The board recognised that an appropriate initial response on its part was for written policies covering 'these matters' to be put up in the office at Legibook. Mr Somers also proposed that, subject to the board's comments, he speak with the plaintiff acknowledging her letter, clarifying her reference to violent behaviour and advising her of the steps the board was taking.

36 One director, Mr Fowles, who gave evidence, agreed with the approach suggested by Mr Somers noting that, 'sarcasm, hostility, and rudeness' might be difficult to objectively establish but the alleged threat of termination and violent behaviour should be clarified and investigated as quickly as possible. Another director, Mr Esnault, who also gave evidence, agreed that the alleged threat of termination and violence should be clarified and if seriously alleged by the plaintiff, her account should be recorded. Yet another director, Mr Wong expressed concern that the plaintiff is 'continually subject to sarcasm, hostility, rudeness and violent behaviour', because she does not have to put up with any of that conduct. Mr Wong suggested that the plaintiff should 'highlight specific instances when she has felt bullied in writing'.

37 From the start, the board recognised that the allegation was of bullying behaviour by Mr Cowell, including occupational violence, that it needed to be investigated, that it warranted a response, and that it could cause an injury to the plaintiff compensable as a Workcover claim. In its initial response, the board did not contemplate that its reaction in the circumstances was to be determined by the plaintiff's choices.

38 On Thursday 3 April 2003, Mr Somers spoke with the plaintiff. He informed her about the board's response and process adopted and sought further details about the reference to 'violent behaviour'. The plaintiff confirmed that she was referring to the book throwing incident which she had mentioned in their 19 March conversation. Mr Somers recorded her response as being that she had asked Mr Cowell a question at a time when he was stressed. The question concerned a book and he picked up a book and threw it at her in a manner that required that she move out of the way to prevent it striking her. The plaintiff told Mr Somers that it did not alarm her but did surprise her and that there had not been any other similar incidents. The plaintiff described Mr Cowell as swinging into a bad mood and getting 'crotchety' when he is under pressure. The plaintiff said that she felt she was able to work with it.

39 The plaintiff explained that the reference to 'threat of termination' was to an incident that occurred in the first four weeks of her employment at Legibook, when Mr Cowell apparently said words to the effect that 'if you want to keep this job you must learn the stock'.

40 The plaintiff made it clear that Mr Cowell's behaviour was associated with the heavy trading period at the beginning of the semester and that since matters had quietened down Mr Cowell had been much better to work with. Mr Somers expressed his expectation that by Easter the board would have put in place, on the shop floor, written policies dealing with workplace conduct, harassment, etc. Mr Somers told the plaintiff that any repetition of the book throwing incident would be likely to trigger a formal response from the board whether or not she required it. Mr Somers asked what the plaintiff expected, stating that the board could take some sort of disciplinary measure or just take her comments on notice. The plaintiff responded: 'Sit on it at this stage and take the comments on notice'.

41 When asked, the plaintiff agreed that her expectations were being met and that she felt more comfortable at Legibook. She told Mr Somers that a couple of weeks earlier she had suggested to Mr Cowell that he could not keep running her down 'like this all the time' and while he seemed surprised that she had spoken up, he had since that time been courteous and easier to work with. Mr Somers asked the plaintiff to keep the conversations confidential. I find that Mr Somers was somewhat relieved by the plaintiff's attitude, which did not require difficult decisions or immediate actions.

42 Mr Somers' observations on his conversation with the plaintiff were accepted and adopted by the board. I am satisfied that Mr Somers accurately recorded the plaintiff's contemporaneous complaint. Mr Somers firstly reported that the plaintiff did not want specific disciplinary measures taken in relation to the book throwing incident as it was not something she felt was threatening. Second, Mr Cowell's conduct had improved recently after she had spoken to him, albeit briefly. Third, the incident of greatest concern had been an isolated occurrence. Significantly, Mr Somers observed that the lack of direction from the board to Mr Cowell seemed to have led to some 'rather arbitrary and brusque work practices in his dealings with her'. Mr Somers suggested that the position description process, employment contracts, a detailed reporting structure and workplace policy implementation should be completed and would be sufficient to address and control these concerns. He suggested that Mr Cowell would modify his conduct appropriately if the board, of its own initiative, made clear to him that appropriate workplace conduct in conformity with the board's written policies would form part of the board's employee assessment process.

43 In the context of these observations, Mr Somers recommended that Mr Cowell's alleged conduct did not warrant any formal warning or further investigation but the board should take the action that had already been proposed to address the plaintiff's complaints and should maintain an ongoing dialogue with both staff members individually at regular intervals. Mr Somers concluded by reminding directors to look 'both to our legal obligations as an employer and the necessity to provide a functional workplace that accommodates all staff'. Mr Esnault, Mr Wong and Mr Fowles each acknowledged and agreed with Mr Somers' report and his recommendations to the board.

44 The board failed to follow through on its recommendations and Mr Cowell remained ignorant of its general and its specific concerns, a matter to which I will return in due course.

45 Both Mr Cowell and the plaintiff were then invited to attend the next board meeting on 16 April 2003.

46 The issue arose as to whether both Mr Cowell and the plaintiff should attend future board meetings. Mr Somers was of the view that it would be preferable that both staff should attend when staff attendance was appropriate. One purpose was to show Mr Cowell what the board was apparently not prepared to directly state to him; that the board valued the plaintiff's contribution and that Mr Cowell should not engage in conduct that marginalised her.

47 I am satisfied that the board continued, during 2003, to desire a co-operative and collegiate working environment between its two employees in the operation of the business. I am satisfied that, following her complaint in April 2003, the board encouraged the plaintiff to constructively contribute ideas and suggestions about the operation of the business. As a result, although both the plaintiff and the board recognised that Mr Cowell was the manager and the plaintiff was the sales assistant, the plaintiff reasonably perceived, as the board intended, that she and Mr Cowell were colleagues.

48 Despite its resolutions, the board never settled position descriptions for the two employee positions or workplace behaviour policies. Although the board did not consider a formal response appropriate, no informal investigation or inquiry was conducted. Neither did the board or any of its members engage in any informal contact or dialogue with Mr Cowell for the purpose of communicating the board's expectation of behavioural standards to apply in the workplace. It was not suggested that it was impossible to do so without prejudicing the confidentiality of the plaintiff's complaint. There was no evidence that it ever occurred to any member of the board that an informal chat with Mr Cowell about the board's expectations in terms of the relations between employees and the issues that generally arose from the plaintiff's complaint might have been a positive step to take.

49 Possibly, the board's inaction is explained, but not excused, by Legibook's circumstances. Its directors were volunteers, some of whom were students and others were ex-students who had embarked on legal careers. The organisation is a 'not for profit' co-operative. However, I am satisfied that the board specifically contemplated a risk that further or continuing conduct by Mr Cowell towards the plaintiff of the type she described might breach the board's legal obligations as an employer. The board contemplated that if it failed to provide a functional workplace that carried the risk of damage and 'workcover claims' it would breach its obligation to provide a safe workplace for its employees. In evidence, Mr Somers explained his perception of this risk of damage:

What did you mean by that comment then, back in 2003? [3]---That we need to ensure that Kris's conduct isn't causing Wendy any damage.

And if it was? ---We'd have to deal with it.

Did you have any type of damage in mind?---Um - I don't recall, but physical or mental damage are the two that are the obvious ones.

So you accept that as of this date, you were at least on notice about the possibility of there being some mental damage, in your words, to one of your employees? ---Yes.

And that if in fact conduct continued, that it was a very real possibility that this could occur?---Um I'm not sure I agree with that.

All right, but you agreed that it was a possibility?---Correct.

You anticipated the possibility of it?---Correct.

I am satisfied that in this context the board contemplated more than an isolated incident of occupational violence such as the alleged book throwing incident. It had in mind more generic bullying conduct.

50 While referring to a need for investigation, the contemporaneous documents do not dismiss the plaintiff's complaint as unlikely, or question her veracity. At trial, the defendant's witnesses offered no plausible or compelling excuse for their failure to act. The defendant pointed to the expressed desire of the plaintiff that her allegations be taken on notice. The need for fairness to both employees by investigating the situation seems to have been surpassed by acceptance of the plaintiff's 'choice' to accept the board's conduct as appropriate. On any view, it was the easy outcome. But that does not explain why they failed to follow through either with the process of job position descriptions, employment contracts, workplace behaviour policies, employee review and regular monitoring of the circumstances in the workplace or with an informal response.

51 Despite the Easter deadline, in August 2003 the employment contracts were yet to be formalised although some progress had been made towards job position descriptions. At that time, while comforting the plaintiff that the imminent employment contracts would reinforce the workplace obligations incumbent upon Mr Cowell, Mr Somers again invited the plaintiff to comment on whether she was satisfied with the way the board was addressing her earlier complaint. The plaintiff replied that she was happy with the process and felt that her concerns had been met. She was referring to employment contracts, clear job descriptions, and bullying/harassment policies. In reality, the process with which the plaintiff was happy had again stalled and there had not been, nor would there be, any communication between the board and Mr Cowell that did, or could have, communicated to Mr Cowell the board's concerns, as expressed to the plaintiff, that in its view any conduct that might constitute bullying or occupational violence was unacceptable.

52 On 26 May 2004, the board resolved to convene annual 'staff chats' with each staff member on separate occasions in May or June each year commencing in 2005. The defendant's board papers show that the staff contracts and a draft discrimination and harassment policy were on the agenda in September 2004. There was no evidence of any staff chats initiated by the board, save that the plaintiff stated that sometimes Mr Esnault or Mr Somers would check in and ask how things were going. The plaintiff would say 'nothings really changed'. The directors would say they were working on the contracts and would ask if everything was ok at the store. They did not ask the plaintiff how she was feeling or if she was well and she didn't volunteer information to them on those occasions.

53 In April 2005, the plaintiff informed the board that tensions had re-emerged between Mr Cowell and the plaintiff during the busy period at the beginning of semester. The plaintiff informed Mr Somers that she had sought to address some of these problems directly with Mr Cowell, describing him as not the easiest to talk to when under pressure. Mr Cowell agreed with her desire to discuss her concerns at a private meeting. That meeting took place over dinner at a restaurant on 21 April 2005, attended by Messrs Somers and Esnault.

54 The plaintiff told the directors that Mr Cowell mismanaged the ordering of texts and students and lecturers were irate. She told them that the ordering was completely in disarray and she was sad about how the beginning of semester had gone. She informed them one casual employee left in tears after one day's work.

55 The plaintiff said Mr Cowell admitted his mismanagement put staff under a lot of pressure. That pressure put Mr Cowell in a bad mood that caused him to be aggressive. He was nasty to her, to the temporary staff, to students and to lecturers who inquired why stock was not available for their students. Mr Cowell told the plaintiff to say in response to these inquiries that stock was coming in soon, and not say texts were out of stock, as that response might draw the attention of lecturers to his mismanagement, which created a risk that the directors would learn of it. Mr Cowell expressed the pressure he was experiencing from the lack of stock by nasty comments to the casual staff like 'you're not working quick enough', and 'you have to work out where these books are'. The plaintiff stressed that the angry, and aggressive, manner in which she and the causal staff were spoken to was her particular concern. The response that he required that she give to inquiries as to the availability of stock made her feel like she was lying, and that students would think she was incompetent. The plaintiff was upset and stressed by the atmosphere. She saw a casual staff member cry because of the manner in which Mr Cowell spoke to her.

56 The board members told the plaintiff Legibook would implement policies to make things work better. They said they understood she was very unhappy but that this should not happen again as the board would put the contracts into place that would clarify the employees' roles. The plaintiff could not recall whether the board acted after this meeting, but putting contracts in place and workplace policies in the bookroom did not occur and why it did not remains unexplained.

57 On 24 July 2007, during the busy period at the start of second semester, Mr Somers received two phone calls. The first was from the plaintiff at approximately 12.45 pm and the second was from Mr Cowell at approximately 1.10 pm. Mr Somers learned that there had been major conflict between the plaintiff and Mr Cowell. The plaintiff had left the work site in a distressed state complaining of workplace bullying and Mr Cowell was accepting that he had allowed a situation to get out of control and had responded inappropriately. The events of this day precipitated for the plaintiff a breakdown exposing symptoms of depression and anxiety. About two months later, Mr Cowell resigned as manager of the bookshop.

58 Apart from the failure to implement contracts, job descriptions and policies, there was other evidence of dilatoriness by the board. The task of ordering new bags for packing purchases for customers was taken from the plaintiff and Mr Cowell by a director, but the board would then take 12 months to deal with that issue. The plaintiff could have resolved that matter in a few weeks. The plaintiff perceived that although the board were quick to say what would be done, they were slow to act, and patience was required.

59 Before setting out my findings about the events in July to October of 2007, I will set out my findings about what occurred between the plaintiff and Mr Cowell from 2002 to 2007.

What occurred between the plaintiff and Mr Cowell.

60 What is relevant when examining the impact of Mr Cowell's behaviours is that there developed a significant inconsistency between the plaintiff's perception of the board's view of her worth to Legibook and her perception of Mr Cowell's view of the same matter. I have expressed my findings about the former. For evidence about the latter, I now turn to the private dealings between the plaintiff and Mr Cowell. I am satisfied that this inconsistency in perceptions, which was not of the plaintiff's making, not only contributed to the stress she experienced in the workplace, but magnified the stress that the plaintiff experienced. Mr Cowell's conduct, when viewed in isolation as individual events, can appear innocuous, but that perspective is inappropriate.

61 The plaintiff alleges that Mr Cowell created an intimidating atmosphere that he knew she found oppressive. Mr Cowell knew that the plaintiff felt intimidated and uncomfortable in his presence, but he didn't care. Motive is irrelevant. Mr Cowell had a particular attitude, flowing from his personality. It is probable that Mr Cowell either positively disliked the plaintiff or simply did not care for her personal idiosyncrasies. In the crowded, cramped bookroom, which was mostly a private space for the two of them, Mr Cowell felt no compunction to treat the plaintiff with the level of respect that is reasonably expected and commonly afforded between two colleagues working together in such a space. It is out of personality conflict of this sort in that confined and isolated space, which cannot be fully analysed in a courtroom, that the repeating pattern of Mr Cowell's conduct towards the plaintiff became unreasonable.

62 I am satisfied that Mr Cowell's conduct towards the plaintiff was initially disrespectful, arrogant, and uncaring. Mr Cowell saw no need to be polite to the plaintiff, but he did see a need to be controlling and to assert that he was in charge. I accept the plaintiff's evidence of receiving his anger and other bad moods. It was evident that he has some need to manage these emotions. I think it probable that Mr Cowell reacts poorly to stress and it will appear that a number of the critical incidents occurred at times when he was under stress. I am satisfied that Mr Cowell is well able to be even tempered and pleasantly disposed to others and commonly is. He could do so in the presence of his employers. He did so in the witness box. There was insufficient evidence for a finding that he is a person who is even tempered and pleasantly disposed to others in all circumstances, as there was no evidence generally of his character. I am satisfied that it was in the crucible of stressful times in the close cramped bookroom that a need arose for Mr Cowell to manage his anger and his moods, but he failed to do so appropriately.

63 Some general observations of the plaintiff's character are also appropriate. The plaintiff was perceived by Mr Cowell as being too voluble, chatty, or loquacious. She did not so appear in the witness box, but she has suffered a significant psychiatric injury for the past five and a half years and is not the person she was. I accept that the plaintiff was voluble, chatty, or loquacious at work. It was her natural character, well intentioned and friendly, traits that had been reinforced by her years of employment in caring occupations and retail service when self-employed. In the early days of her employment this characteristic of her personality was evident. She asked questions, made conversation and gave suggestions about how the shop should be managed. This was a reflection of not just her personality but also her perception of what her employer expected.

64 For his part, Mr Cowell didn't care much for conversation with the plaintiff. He liked, when not busy serving customers, to work in a room filled by talk radio. Mr Cowell preferred to listen to 774 ABC local radio than to the plaintiff's conversations. The plaintiff said that she felt ignored from the beginning and I accept that a pattern developed in their relations where Mr Cowell largely ignored the plaintiff. When he did communicate with her, he did so in a manner she found discourteous and unpleasant. I do not think that Mr Cowell lacked the social skills to be courteous and pleasant to the plaintiff in the bookroom. What he lacked was the control that he thought he was entitled to exercise over her conduct and performance at work. I am satisfied Mr Cowell never embraced the notion that in the small and confined workspace, operating the business of a co-operative, he and the plaintiff were colleagues - equals - as the board perceived them to be.

65 The plaintiff is an intelligent and competent person, well able to readily adapt to the simple business processes and procedures that were required to operate the Legibook business. At trial something was sought to be demonstrated by a comparison of Mr Cowell's experience in managing larger retail bookstores in the United Kingdom with the plaintiff's want of experience in bookselling. The evidence did not disclose any respect in which Mr Cowell's experience in the UK positively assisted the development of Legibook or any respect in which the plaintiff's experience in the retail nursery industry, without bookselling experience, was, in any way, detrimental to Legibook. On the other hand, Mr Cowell's experience was in much larger workplaces where he had risen to be a manager of up to 50 employees. His management experience appeared to be in a workplace relations setting that was far removed from what he found at Legibook and his response to the plaintiff undoubtedly drew on that experience. Mr Cowell was authoritarian and instructional. He was the manager, she was the assistant. He neither needed to pay heed to her suggestions nor explain his disinclination to give them any consideration let alone implementation.

66 I have already noted that the defendant contended for a defence from these circumstances. The personal interaction between the plaintiff and Mr Cowell was merely personality conflict that arose from the plaintiff's insistence that, although Mr Cowell was 'the manager', they were colleagues. The plaintiff's injury was caused by the plaintiff's failure or refusal to acknowledge the hierarchical structure in the workplace. Mr Cowell perceived his role as controlling and instructional. He managed the business, not just its assets, stock and procedures, but also its employees. Mr Cowell was properly entitled to insist on acceptance of his role as the organising force in the business and his decisions without question. The conflict that arose when these different attitudes combined with the different natures and personalities of each of them led to the plaintiff's injury. I will, in due course, say a little more about this contention.

67 One significant feature of the plaintiff's character is that she likes things done properly and naturally looks for more efficient or better ways of completing tasks, perhaps something of a perfectionist or a little obsessive. This feature of the plaintiff's personality grated on Mr Cowell and, given that he had no capacity to enjoy casual conversation with the plaintiff, was a significant part of their social interaction. What resulted was that Mr Cowell's private interaction with the plaintiff was not polite or respectful and that became a pattern.

68 Having made these general observations by way of introduction to the evidence of specific incidents, I turn to the evidence of the plaintiff and Mr Cowell of such matters.

69 A couple of months after starting employment at Legibook, an incident occurred that the plaintiff identifies as the start of Mr Cowell's bullying behaviour. Mr Cowell required that she memorise the booklists. In any particular semester, the law school taught certain core and elective subjects and students purchased their required books for their subjects at the start of the semester. It was not the task itself that was the issue, although it was unclear whether memorising the booklists was ever any more than 'busywork' allocated to an employee in a controlling way. Rather, it was the fact of the task and the way the task was given to her. Mr Cowell said he would test the plaintiff and would sack her if she didn't demonstrate that she knew the booklists. The plaintiff described the surprise imposition of this testing process under a threat of dismissal as very stressful. Mr Cowell raised his voice and went red in the face when he told her of the task - she described him as 'nasty' to her - and the plaintiff felt incompetent without understanding why.

70 The plaintiff responded by taking the booklists home and studying it in her own time. Her husband was moved to inquire about this activity, surprised at what she was doing and why. I accept his evidence that she was quite surprised and considerably upset by the threat to sack her. Mr Swan said it appeared that she had been 'sort of put down rather harshly'.

71 Mr Cowell's evidence was that, in a quiet time in about November 2002, he politely said:

This is an ideal opportunity to learn, you know, see if we can get you learning exactly where everything is because, and these were my words, that in March, when the semester started, you would be really struggling if you don't know exactly where to lay your hands on each book because there'd be 100 people waiting and all you've got to do is just grab all the books and bring them up and serve them as quickly as possible.

Asked what she made of the exercise he had set her, Mr Cowell said 'Fine. I think she picked up a lot out of the exercise ... she seemed to know where things were a lot better than I thought before'.

72 Setting the task was not denied, but Mr Cowell put a different complexion on it. Mr Cowell commenced employment with Legibook in July 2002 and had not yet experienced a first semester rush in the bookshop. There was some reference to his experience in bookshops in the UK that also sold academic titles but I am not persuaded that that experience prompted the setting of the task. Mr Cowell reconstructed this evidence, and I prefer the plaintiff's account of the way in which the incident occurred as the probable explanation of what passed between them.

73 What Mr Cowell's version of this event reveals, in my view, is his attitude. He thought the plaintiff needed an 'opportunity to learn' and he wanted to 'see if we can get you learning exactly where everything is' and 'she picked up a lot out of the exercise' and was 'a lot better than I thought before'. Mr Cowell's reconstructed version shows his lack of respect and authoritarian attitude towards the plaintiff, but what he actually did reveals much more. Mr Cowell employed a threat of dismissal. He knew he did not have the right to dismiss his assistant. That he made that threat implies that he did not care to work with the plaintiff. While he did, he intended to assert control and power over her. It would be about 6 months later, and following their first stressful first semester book rush, when the plaintiff learned that Mr Cowell did not have the right to have made that threat. The assumption of that power of dismissal by Mr Cowell thus affected the plaintiff for a significant time.

74 Before 2002 passed, there was a second incident. Again, for reasons that I will explain, I accept the plaintiff's version of this incident, although it is not found wholly within her evidence from the witness box. In short, Mr Cowell threw a legal text book at the plaintiff, who had to duck to avoid being struck on the head by it.

75 I have already set out how Mr Somers recorded the plaintiff's description of the book throwing incident in March 2003. In evidence, the plaintiff said:

Can you explain the circumstances of that to his Honour?---I do not know. I - this is something I've really blocked in my memory and even my psychologist or psychiatrist hasn't been able to get this out. Um, all I remember is a book being thrown and I ducked and I was horrified at the thought of someone throwing something at me in the workplace 'cos it had never happened before. I'd never experienced this sort of, um, intimidation and bullying and harassment.

In the book throwing incident were you having a conversation with him?---With - with the book throwing?

When he threw the book at you?---I can't remember. I really can't remember. I

- - -

You saw the book coming?---I just saw the book coming and I ducked, and I was just horrified. I can't even remember what it was over. There's just been so many incidences.

... and if you hadn't have ducked, where was it - - -?---At my head.

- - - directed?---At my head.

you don't recall seeing him - seeing it come out of his hand I take it?---No. I wasn't expecting it.

So why do you say it was thrown at you? What were the circumstances that

- - -?---Because he was - I was talking towards the counter and he was at the counter and he just threw it directly at me. We were sort of straight in line with each other.

How far away from him were?---Probably about 15 feet.

Did you have a conversation with him, why did you do that?---Oh, I would have. There was a lot of times where I would say to him that's inappropriate behaviour, I really don't like it. I was always a really strong woman. Sorry.

Sorry, I just missed what you said then, you're always a very?---I was always a really very strong woman, and I thought that I would be able to handle him without having to take it any further. I really like my job there and I thought I would be able to handle someone who was abusive and bullying and I'd never really experienced it before, but I still felt that I would be strong enough to work in the situation and just go home and not have to worry about the place when I got home. And I didn't want to have to leave the job because I loved the job and I loved the campus and I loved the other people that I'd made friends with there, and I didn't see why I had to be pushed out by a bully.

76 The absence of any mention of the book throwing incident of 2002 to medical witnesses after 2007 is a matter of some significance. The defendant suggested that the event did not occur at all, as Mr Cowell said in evidence, and that the absence of reference to it in the recorded histories confirms Mr Cowell's version of the event, but I do not accept this suggestion. Significantly, the plaintiff said she had blocked this incident out of her memory, which may contribute to an explanation for her not having mentioned it to doctors. In addition to the need to express care in dealing with what is recorded by others who have not given evidence as being the plaintiff's explanation of events, in this case it must be borne in mind that the plaintiff was told by the defendant before she ever saw any of these medical witnesses that her complaint about her unsatisfactory working relationship with Mr Cowell had been validated and she reasonably perceived that he had been dismissed. I will come to those events in due course. One might infer that once told that the manager had been dismissed by the employer for bullying, a medical witness might not be that interested in recording the minutiae of a long ongoing pattern of behaviour. Thus a single incident, from 2002, but the only incident of occupational violence, passes unrecorded in her histories.

77 However, ample contemporaneous reference to the incident in 2003 precludes an inference that it never occurred, from the failure of medical witnesses to record the book throwing incident, as Mr Cowell contends. In particular, I accept Mr Swan's evidence that the plaintiff told him of the book throwing incident when it happened. Mr Swan said that she told him that Mr Cowell was frustrated and threw a book at her. She had to duck or the book would have hit her. He encouraged his wife to report the incident to her employers because it was an assault. Mr Swan also volunteered to speak directly with Mr Cowell. The incident was mentioned in the complaint to the board in March 2003 and was also mentioned by the plaintiff to the expert psychologists, Ms Mellington and Dr Wyatt.

78 Finally, I am satisfied that Mr Cowell's denial of this incident was a false denial, which is one reason why I generally prefer the evidence of the plaintiff. When initially opening the defence, counsel stated that 'the bullying etcetera is denied', without detail about what Mr Cowell would say. That detail came in cross-examination of the plaintiff and her husband, by the defendant's very experienced senior counsel:

Well if he says there's a discussion by you about where is X and he said in effect, not throwing at you but tossing across, here's X?---That would be unacceptable anyway.

Yes, but you're not saying it didn't occur in that fashion are you?---No, he threw the book directly at me.

You're not saying it did not occur as a consequence of you asking the whereabouts of the book that came towards you, are you?---I don't know why the book came to me.

That's right, so you can't say it didn't occur that way?---Well he threw the book at me.

So that if my learned [friend] said to me, 'Where's the defendant's court book', and I threw it to land in front of her, that would be quite inappropriate in your view?---No.

No?---That's not what happened.

But you don't have any memory about whether you did or did not have any discussion about it, you didn't see him throw it?---But I know the book came at my head, and I ducked - - -

Well that's what you say?--- - - - and I ducked.

The like suggestion was put to the plaintiff's husband:

There was no question that it was a question by her about where is such and such a book and instead of bringing it across and putting it down he tossed it in her direction?---I - I very much doubt that was the case.

You very much doubt but you can't say that was not the case because you don't recall what she told you, is that so?---No,[4] because he threw it 15 metres or 15 feet from one side of the room to the other.

79 Then, counsel opened that Mr Cowell's evidence about the alleged book throwing incident would be that there was no such event, and the suggestion that the book had been tossed in response to the plaintiff's request fell away. Mr Cowell's evidence was:

Now, did you at any stage ever aim deliberately a book that you threw at her head?---No.

Was there ever a book thrown by you in her general direction?---No.

Did she ever have any discussion with you about any book being launched at or near her?---No.

When is the first that you became aware that Mrs Swan alleged that you had thrown a book at or in her general direction?---Probably when I was contacted by the lawyers prior to this case late last year, I think, is the first time I'd heard of it.

80 When cross-examined, Mr Cowell maintained that there was never an occasion when a book was airborne or was thrown to the plaintiff after she asked for it. Mr Cowell would not say the plaintiff was lying, or had made up the allegation, simply that it never happened. He never threw or tossed a book.

81 There was other evidence about the incident. The defendant's counsel suggested the 'tossing' may have occurred between their respective desks. Another suggestion that better correlated with the distances suggested by witnesses was that the plaintiff was at the serving counter and Mr Cowell was at his desk. The plaintiff was cross-examined about her reaction to the incident, having said in evidence that she was frightened and alarmed by what happened and that she did not know why she did not immediately complain about it, eventually stating that she 'was very distressed'. I am satisfied that until March 2003, she was under the impression that Mr Cowell could sack her and, being newly employed and otherwise enjoying her job, she didn't want to make a fuss. The plaintiff stated to Mr Somers, in March 2003, that the incident did not frighten her. I accept her explanation that in the March 2003 conversation she had other reasons not to emphasise that incident, including her belief that Mr Cowell could fire her and the fact that she did not want to be seen to be causing trouble when she had just started the position. I also accept Mr Swan's evidence that his wife told him a book was thrown at her when it happened. I do not accept that the plaintiff and her husband discussed out of court the evidence that they would give about this incident, although plainly the incident had been discussed between them in the past.

82 The proper perspective on the book throwing incident is not that it marked a pattern of occupational violence, because it was an isolated incident in that sense. However, it formed part of a pattern of aggressively asserted control over the workplace environment by Mr Cowell. Following on the threat to sack the plaintiff if she failed to memorise the booklists, the book throwing incident is demonstrative of Mr Cowell's use of his anger and his mood to control and dominate the atmosphere at the bookroom and in this sense a pattern emerged. The pattern was not characterised by actual violence but by a propensity towards anger and violence.

83 Not long after the book throwing incident, the plaintiff arrived at the bookroom to discover a damaged calculator lying in pieces on the floor. Mr Cowell was not then present. The evidence of Mr Cowell and the plaintiff was in conflict over the calculator and I prefer the plaintiff's version of this event. Asked what had happened when he later arrived at work, Mr Cowell said 'I threw it at the wardrobe, I was mad'. The plaintiff perceived the incident as a display of unnecessary and inexplicable violence towards an object. Mr Cowell admitted as much. Mr Swan said his wife came home one evening and said Kris had smashed this calculator at work today and she was frightened by the discovery of another act of violence by him. Mr Cowell did not dispute that there was an incident involving a calculator. He described being frustrated using the calculator as it had a sticking key and he threw it in the bin. Mr Cowell disputed that the calculator lay broken on the floor or that plaintiff saw it there.

84 I accept that there was a third outlet of violent expression of mood that the plaintiff regularly witnessed during her employment at Legibook. Mr Cowell, when frustrated or angry, had a habit of slamming the receiver of the phone into its cradle and throwing his work down on his desk. The plaintiff described his actions as very aggressive. These intemperate, and unnecessary, displays may not have been directed specifically at the plaintiff, but often occurred in her presence, creating a stressful anticipation of conflict, or further or other unpleasant conduct from Mr Cowell that might be directed specifically at her.

85 Such behaviour intimidated the plaintiff, increasing her anxiety and causing her to moderate her own behaviour. When these acts occurred she went into her 'shell', staying 'quiet' and 'out of his road' so that he wouldn't be further aggravated. This reaction was recorded by Mr Somers, early in her employment at Legibook, in an email to directors that recorded that Mrs Swan asked Mr Cowell about a book at 'a bad time', meaning at a time he was stressed, and he threw the book at her. The workplace environment revolved around Mr Cowell's mood. He used his mood and demeanour to demonstrate his control over the bookroom as the plaintiff describes:

His moods would swing a lot. So I got to learn over the five years when to be quiet, when to have a normal discussion, when to not question, when to just do my work, or just leave and go and buy a cup of coffee... and just try to calm myself down again so that I could just - and then I would just concentrate on my work.

Well I always knew when he was going to have a bad day because he would come in with a very red face and he would be very assertive right from the very beginning of the day. So those days I tried to not speak too much and stay fairly quiet and just go about my job and get my work done and then leave and go home. I didn't want to inflame any situations.

86 I am satisfied that each of these incidents of violence occurred at a time when the plaintiff believed that Mr Cowell had the power to dismiss her and that the effect of them was to intimidate the plaintiff. From that time, Mr Cowell was able to, and did, bully, intimidate and harass the plaintiff with his tone of voice, his moods, his sarcasm and his rudeness, with overt displays of violence, but not actual violence to the plaintiff as initially occurred. Dr Michael Epstein, a psychiatrist who examined the plaintiff on at least four occasions and whose evidence I accept, explained the significance of intermittent reinforcement in a slightly different context:

There's a concept in psychology of intermittent reinforcement which is that if you randomly do something to, for example, a laboratory rat, the rat keeps anticipating that that will be happening even though it's not happening, because it's intermittent reinforcement. So you never quite know when it will happen again. And so, in my experience, having dealt with a lot of people who've been subject to alleged workplace bullying, they reach the point of anticipating that the bullying occur, even though it doesn't actually occur.

The plaintiff, despite thinking that she was coping with the stress created by Mr Cowell's control of her workplace environment, was suffering significant levels of stress anticipating that voice tones, moods, rudeness, sarcasm, nitpicking and other behaviours would lead to actual violence.

87 I accept the plaintiff's evidence that their interaction from 2003 to 2007 was typified by exchanges and responses like the following, each in isolation a small matter of no great moment, but evidence of the pattern that developed. First, there are examples of how Mr Cowell engaged with and spoke to the plaintiff.

(a) On an occasion when Mr Cowell rearranged the furniture, the plaintiff was annoyed and upset because it made her feel ignored. That feeling arose because she had suggested that particular rearrangement at some earlier time, and the suggestion was refused without reason. Subsequently when the plaintiff wasn't there, Mr Cowell moved the furniture. The plaintiff felt put down that he'd done it in a way that showed he didn't give her any credit whatsoever for any ideas or suggestions. The plaintiff felt encouraged by the board to make constructive suggestions about such matters.

(b) The arrangement of the book stock in the bookroom on the shelves was a source of conflict. There were disputes over the location of stock, particularly how stock was sorted, and about labelling. Books were placed on the shelves with their spines facing the wall. The plaintiff accepted that Mr Cowell had the last word about such matters, but it was his manner of expressing it that dominated and stressed her. Not only did Mr Cowell tell the plaintiff he didn't like her questioning his decisions but he would tell her so with a raised voice and a red face. He did not conversationally explain his reasons. The plaintiff could not understand why he would want to exercise power over her in this way. When she raised the books with spines towards the wall, Mr Cowell sneered, 'I like it that way, that's how we should stock the shelves ... That's the way it's going to be.' When cross-examined, Mr Cowell denied deliberately arranging books with the spine facing inwards, but later he said that when he did arrange the books in that manner, it was to ensure the books would not be lopsided, because some had much thicker spines than others. This reasoning was never provided to the plaintiff, Mr Cowell simply snapped, "Because I want it that way".

(c) With no explanation for Mr Cowell's preferences, the plaintiff became uncertain about the 'correct' way to do things. The disrespect shown to the plaintiff in innocuous everyday interactions was another method of exerting control. The plaintiff described getting 'teary', unable to understand how something so insignificant could become such a major issue. The plaintiff's suggestions that stock might be arranged on the shelves in a different configuration drew the rebuke, 'For fuck's sake, will you put them where I want them'. I was not satisfied that Mr Cowell was exasperated by the plaintiff's comments. He was expressing his intolerance of her insubordination. There was a deal of evidence about the arrangement of stock on the shelves. I am not persuaded that his rejection of the plaintiff's suggestions as to how it should be arranged was, of itself, inappropriate. It was the manner in which Mr Cowell delivered his instruction, not the instruction itself, that was contributing to a harmful environment for the plaintiff.

(d) Mr Cowell was regularly unnecessarily sarcastic towards her in conversation. An example concerned eating bananas. Whenever she ate a banana, Mr Cowell said, 'do you have to eat that in here'. He didn't like the smell of bananas, which he expressed as 'that smells good, doesn't it.' So she would make sure that even the peel was put in a bin outside of the bookroom to avoid arguing over it. Another example concerned 'post-it' notes. The plaintiff liked to use them, particularly to leave messages, which she posted on his desk in the order of receipt. Mr Cowell, when he saw them, sneered 'you've left me messages, haven't you. I see all these post-it notes are sitting here'. He stopped purchasing 'post-it' notes for the bookroom, saying that he didn't like them or the way the plaintiff used them. The plaintiff told Mr Cowell that she would still like to use them for her own purposes, even if he didn't like them used on his desk to leave notes. Mr Cowell indicated that she should get money out of petty cash to buy her own, refusing to order them on her behalf. Although such behaviours are obvious evidence of personality conflict, their significance is their place in the wider pattern of Mr Cowell's treatment of, and pursuit of control over, the plaintiff.

(e) Mr Cowell made offensive remarks in the plaintiff's presence. Examples that emerged from the evidence included observations that vilified staff of Asian appearance employed by the bank - they're all stupid - or dark-skinned students employed in the bookstore as casuals, whom he reduced to tears. Mr Swan recounted that the plaintiff told him Mr Cowell appeared to get on well with male casuals but 'seemed to have an issue with' female casuals, but there were no specific particulars given in evidence. The plaintiff said Mr Cowell asked her to train temporary staff that he did not like and it appears, from histories given to professionals, that the plaintiff was mostly asked to train and work with female casuals, particularly those who were not Anglo Australians.

(f) Mr Cowell used offensive language both in conversation with the plaintiff and in her presence. Although it was not usual or even regular for Mr Cowell to swear directly at the plaintiff, he did so in the following ways, usually as an expression of anger or a bad mood; 'What the fuck did you do that for', 'For fuck's sake, go and put them where I tell you to put them' or 'Shit, I didn't want it like that'. Much more regularly, Mr Cowell swore in the plaintiff's presence, 'For fuck's sake, I want [this or that]', 'Oh, for fuck's sake this bloody program just doesn't work properly' or 'this fucking system is ...'

(g) There were numerous examples of rude, demeaning, hostile or sarcastic statements from Mr Cowell. I accept that he regularly spoke to the plaintiff using a loud voice, an angry tone, often accompanied by a red face or other expression and demeanour consistent with such a mood.

(h) There was also conflict over dealing with customers, usually associated either with book requests that were out of stock or refunds. I am not satisfied that Mr Cowell's attitude to refund requests is relevant, except in the sense that it provided occasions when the plaintiff saw him speak rudely or demeaningly to students or casuals, invoking a stress that she too might be about to receive a sharp word or an angry reaction. I accept that it was Mr Cowell's habit to intervene in the plaintiff's conversations with students, both in person and over the phone. Mr Cowell justified his interruptions as arising from a need to correct the plaintiff who was giving out misinformation about the availability of stock or the like. The plaintiff rejected that characterisation. Misinformation usually followed on from Mr Cowell's inability or refusal to keep the plaintiff informed of basic issues, for example that the text book being sought by students had arrived on the previous Friday in her absence. More significantly, the plaintiff complained that Mr Cowell was, when he interrupted a conversation that she was conducting with another person, disrespectful and demeaning in his tone and in the manner in which he presented the correcting information. In this way, he belittled and humiliated her in front of other people. Rather than say helpfully that the stock had just come in, Mr Cowell interrupted conversations not just with corrections about the stock availability but also with the suggestion that she ought to have known that fact, carrying the implication for all listening that only stupid or ignorant persons would be so unaware or that the student was being misled. The plaintiff was made to feel that she didn't know her job, that others would consider her incompetent, when she knew that she was competent. I accept that the plaintiff felt belittled, stressed and hurt in these circumstances, which regularly occurred. I am satisfied that Mr Cowell either intended that she feel that way, hoping she might seek alternative employment, or just didn't care how she reacted to the way that he treated her.

(i) Mr Cowell was nit picking of the plaintiff's work, by an approach of constant observation and correction about insignificant or irrelevant matters. The plaintiff gave evidence of Mr Cowell's close observation of her in the book shop. She described his frequent interruption and 'correction' of her during telephone conversations and discussions with customers in the book shop, and his requests that she cease doing a certain thing at the time she was performing that act. Mr Cowell, for example, curtly requested that she not rearrange the books while the plaintiff was in the act of moving the books, 'Don't touch that book. I've got that there for a reason'. He also told her not to use a certain coat hanger while she was hanging her coat, 'Re-hang your coat because I use that wooden coat hanger'. Use and cleaning up of tea cups was also fraught. Mr Cowell disapproved of how the plaintiff answered the phone. She would say 'Legibook, Wendy speaking', and he preferred her to answer simply, 'Legibook'. Mr Cowell expressed his disapproval to the plaintiff about the way she answered the phone over a period of time, building to a heated exchange when he said to her, 'Why do you always have to fucking well answer the phone via your name? You don't need to do that. There's only two of us working here'. These examples make out the plaintiff's concern that Mr Cowell was listening and watching her closely. Cumulatively, these corrective and disrespectful interactions led the plaintiff feel that she was constantly being watched by Mr Cowell, whom she described as being 'ready to attack at any stage':

[E]very move I made within the store I could feel him watching me and I knew that he was watching me when I would change books on the bookshelf and he would say, "Don't touch that book. I've got that there for a reason." Um, if he hadn't been watching me he wouldn't have known I'd even moved the book, um, and I started to feel his eyes on me all the time and I felt terribly enclosed and insecure in that space.

(j) The plaintiff did not readily submit to such nitpicking. It does not matter that Mr Cowell ceased instructing the plaintiff to answer the phone by introducing who was speaking. I am satisfied that other form of nitpicking followed on, in an episodic rather than a continuous way. The plaintiff agreed with the cross-examiner that she raised the phone answering issue with Mr Somers, yet continued to answer in her own way. As the plaintiff explained:

... I felt that Paul Somers had everything in hand, and he had instructed me that he was going to make sure that Kris didn't make my life hard at work, and would put the policies and procedures into place and keep a check on the workplace so that I didn't have to be bullied and badgered by such trivial matters. Because he found it acceptable the way I answered the phone.

And you thought it was bullying and badgering?---When it was continual, yes.

Yes, so it would only be continual when you'd be doing it the way he didn't want you to, of course?---Yes.

Yes, so if you chose your way and he suggested another, that was bullying for him to insist you do it his way?---If I found that it was unreasonable and he continued unreasonably so, I would then take it to the directors.

I do not accept that such conduct, speaking more generally that just the phone answering, can reasonably be characterised as proper and appropriate management by Mr Cowell of his employee, as the defendant contended.

(k) Mr Cowell's discouraging and disapproving tone permeated other conversations he had with the plaintiff. He was unsympathetic towards her when she experienced a prolapsed disc in 2006 that required 6 weeks off work. Mrs Swan, feeling that she was letting the book shop and Mr Cowell down, followed her rehabilitation program closely in order to return to work quickly, but gradually. Mr Cowell didn't see why she had to return part time; if she was ready to come back to work, she should do so on a full time basis. The plaintiff was made to feel that she should not have bothered. Mr Cowell's statement undermined her efforts to recover, and was made to her at a time when she was still unwell. I accept that the plaintiff felt hurt in these circumstances, and again I am satisfied that Mr Cowell either intended that she feel that way, hoping she might seek alternative employment, or just didn't care how she reacted to the way that he treated her.

88 Next, there are examples of how Mr Cowell controlled the plaintiff's work space.

(a) I accept the plaintiff's evidence that Mr Cowell's response to any suggestion that she made to change any aspect of the workplace was automatic. He would say no. On occasions he would adopt her suggestion later as his own. The plaintiff made many suggestions - that was one of Mr Cowell's objections to her - because he thought she wanted to be the manager, to do his job. When asked, Mr Cowell could not bring to mind a single suggestion from the plaintiff that he had adopted, only recalling that the board had imposed on him the plaintiff's suggestion that the Legibook logo should be printed on carry bags.

(b) I am satisfied that the plaintiff's requests for vision of the service counter from where she sat or for a warning of when customers entered the bookroom when she was sitting at her desk were not unreasonable. His refusal to install a bell was really an instance of his refusal to accept any suggestion that she made. As a result it was necessary for her to twist around from the computer workstation to check for customers. I am satisfied that the plaintiff's vision from her desk was obscured by a bookshelf that Mr Cowell placed in front of it. Although the precise height of the bookshelf was debated in evidence, I accept that, from what appears in photographs and from the plaintiff's descriptions, the bookshelf of itself did not obscure vision of the counter but it could be, and was, stacked with stock on its top that obscured the plaintiff's vision. The effect was to corral the plaintiff into a confined rear office space.

(c) The plaintiff updated the membership database, and had a personal password giving her access to this file. Mr Cowell cracked her password and entered the database when the plaintiff was not at work. He explained that he did this because, in the plaintiff's absence, a director had requested information from the membership list. He told the plaintiff that he had logged into the list as soon as he next saw her, but when she asked him why he had done it, he said smugly, 'Oh, because I just knew what it [the password] was going to be.' In cross-examination, he denied fabricating the directors' request for information. Although it would have been reasonable to ring the plaintiff at home and request the password, if the information was urgently needed, I am satisfied that the issue between them was not about access to information on the database. It was an attempt to show the plaintiff that, being able to predict and use her password, Mr Cowell was able to invade and control the plaintiff's work space. Perhaps, as the plaintiff stated, she believed that more sinister events might occur using her password without her knowledge, but I am satisfied that Mr Cowell had no such plans. He wanted only to demonstrate his abilities and his control. I do not accept his denial that he wanted to cause her distress in these circumstances.

89 There are examples from the evidence of how Mr Cowell controlled the plaintiff's work.

(a) Mr Cowell would not explain his instructions. As the plaintiff explained in evidence:

[H]e just said, 'Because I want it that way'. That was always his reasoning when I asked him why. He hated me asking questions so it got to a stage over the years where I struggled to even ask him a question because he'd say, 'Why do you keep asking me questions?' And at first when I started working there it was because 'I need to know how this place works. I need to know why we do things the way that we do and the only way I'm going to be able to learn that is if I ask you a question because there's only two of us here'. And he would say, 'Well, I hate you asking me questions all the time'.

And what tone did he use when he said that?---Very aggressive.

(b) Towards the end of 2006, when the book store was quiet, Mr Cowell refused to allow the plaintiff to assist with the usual tasks of unpacking deliveries, organising the display of stock, checking orders, and answering the phone. This left the plaintiff with little to do. There was an element of competition in the way Mr Cowell approached tasks during this time. For example, he 'jumped' to answer the phone, preventing the plaintiff from answering first. When the plaintiff offered to assist with unpacking a delivery, Mr Cowell did not want her help as he was 'quicker'. With no tasks allocated to her, and the underlying suggestion that she could not perform them as well as him, the plaintiff described feeling unwanted:

How did that make you feel?---Unwanted and sad - - -he didn't want me working in there, that he didn't feel I could do the job properly, that he felt he could work better than I could. That didn't really worry me, it wasn't a competition. I just wanted to work. I don't like being at work not working.

(c) Mr Cowell gave the plaintiff meaningless tasks, for example, attending personally at the bank to arrange for a refund of $3 to the account.

(d) Mr Cowell was angry that the plaintiff was allowed compassionate leave when her mother-in-law passed away because he was refused compassionate leave to take time off during school holidays to look after his children. This arose at the time of the plaintiff's mother-in-law's passing and funeral. Mr Cowell refused the plaintiff's request to be paid compassionate leave, and also her request that he ask the directors if compassionate leave applied to funerals. Mr Cowell controlled the plaintiff's receipt of her wages, by submitting her timesheet and organising the cheque that needed to be countersigned by a director. The plaintiff described being abused about being paid overtime when Mr Cowell was not paid overtime, despite Legibook paying Mr Cowell a bonus. She also described occasions when he failed to organise a countersignature on pay day so she was not paid until the following week. I do not accept Mr Cowell's statement, denying late payment of wages, that on one occasion he found a director on his day off and personally delivered the signed cheque to her at home.

90 The impact of each of these incidents varied of course. As the plaintiff explained, using the episodes of the stacking of the books with the spine facing inwards:

My stress levels would go up. Sometimes I would have to leave the store and go and get a coffee so that I didn't, um, I'd get teary about it thinking I just can't understand why such a - a little insignificant turning of a book became a major issue in a store. Um, I didn't know why he wanted to have power over how the shelves were actually stacked.

91 Overall, the plaintiff described Mr Cowell's conduct as causing her to feel fearful, stressed, teary, anxious, hurt, upset, belittled, demeaned, incompetent, ignored, and unwanted. I accept that it is probable that she experienced these reactions.

92 The evidence suggests that the core of this behaviour was a conservative, untrained, management style, an unwillingness to accept the plaintiff as a colleague - as the board had encouraged her to believe that she was - and, probably, a basic dislike of the plaintiff as a person. That dislike probably stemmed from the matters that I have already noted. It was not hatred, but his attitude was more than discourteous and disrespectful, distinct from personality conflict, which is not uncommon in a workplace. Mr Cowell and the plaintiff were not required to like each other. In his dealings with her, Mr Cowell either sought to make the plaintiff feel that he would prefer that she left Legibook, or didn't care whether she was comfortable working with him, and that it would be better for her if she found other employment. I am satisfied that Mr Cowell, although he did not regularly say so, would have preferred, almost from the outset, that the plaintiff find alternate employment. If she did not do so, then he was disposed to dominate and intimidate the plaintiff, because he could. I have reached this conclusion on the evidence and from my assessment of Mr Cowell as a witness. I can not say whether the way he treated the plaintiff and some of the casual employees at Legibook was likely to have been typical of his dealings generally with persons with whom he came in contact in his life.

93 The plaintiff did not want to antagonise Mr Cowell, particularly as she was encouraged by the board to believe that a solution was not far off in the form of the position descriptions, employment contracts, and workplace behaviour policies to clarify the board's expectations of the proper standards of interpersonal interaction in the bookroom.

94 In some cases, histories recorded by doctors suggest that bullying behaviour occurred on a daily basis. The parties debated the frequency of its occurrence at trial. I do not accept that the plaintiff ever intended to imply that such conduct occurred every day of the five years that she worked for Legibook. I am satisfied that such conduct was episodic, and that the episodes were associated with times of increased pressure in the activities of the bookroom, notably at the beginning of semesters. During these episodes, bullying behaviour from the categories described above occurred, and probably on a daily basis for a while. Although Mr Cowell's bullying behaviour was intermittent, he was not ever pleasant to the plaintiff, or ever affirming of her worth, between episodes.

95 For her part, the plaintiff mistakenly believed that she could cope with Mr Cowell's conduct. She believed that she was, and remained, a strong person. I am satisfied that as her coping mechanism for workplace stress was being eroded by Mr Cowell's behaviour. She either did not recognise the signs of a looming breakdown or was in denial. Most importantly, the plaintiff effectively reported to her employer in March 2003 that the environment was toxic to her well being and received their reassurance that they were acting to improve her circumstances. The plaintiff also mistakenly believed that she did not need to continue to cope with Mr Cowell's conduct for an indeterminate period, and it was the board itself that engendered that belief. Yet from 2003 to 2007, the board had failed to take the steps which it had itself identified as needed to avoid the plaintiff working in an environment where she was exposed to the risk of a psychiatric injury.

96 Matters came to a head in July 2007. This was a time of increased work pressure in the bookroom, being the start of second semester. The stock of trust faculty lecture notes was not available at the start of semester and student expectations about their imminent availability were high. The stock, which consisted of more than 200 copies of the lecture notes, arrived on Friday 20 July when the plaintiff was not at work. Mr Cowell decided to place the stock on a pallet, at the rear of the bookroom, across from the point-of-sale tills. The usual place for trust faculty lecture notes was on the upper shelf under the counter to the left of the till closest to the entry door.

97 On Monday 23 July 2007, when she arrived at work, the plaintiff was followed into the bookroom by a student asking for the trust notes. As there were none under the counter, the plaintiff told the student they were out of stock but stock was expected and she would check when they might be coming in. Mr Cowell, sitting at his desk, then joined into this conversation with the remark, which the plaintiff described as delivered with sarcasm: 'By the way, they're not out of stock. You weren't here on Friday. They came in on Friday. If you'd bothered to look you would know they were there. You must've forgotten that you weren't here on Friday. Faculty notes have arrived and they're behind you.' Mr Cowell knew the plaintiff had only just entered the bookroom and had not had the chance to look around for the notes, which were not in the usual place.

98 Mr Cowell later told Mr Jensen that it was a common fault of his to interject into her conversations with others. The statement was a good example of a publicly belittling, unnecessarily sarcastic, comment as had become commonplace in Mr Cowell's treatment of the plaintiff. The form of a polite respectful response is obvious. Although yet again hurt and publically humiliated, the plaintiff located the stack on the pallet, placed some notes under the counter in the usual place and, making light of Mr Cowell's comment with a joke to the student, completed the transaction. Later Mr Cowell commented, perplexing the plaintiff, that she might have considered that he was leaving that space for a delivery. The location of this stock became a battleground.

99 The plaintiff considered that storing the notes on the back wall, when there would be immediate high demand for the notes, would be inconvenient so she started putting, and then replenishing, a supply of the notes underneath the counter. She gave evidence of the following exchange occurring between them on the Tuesday morning, with the tone of it rapidly escalating into an argument in which Mr Cowell was shouting at her.

As the morning went on, um, Kris said, "I put them over there for a reason." And I said, "Oh, I just thought it would be easier if we had them underneath the - the counter so that you didn't have to walk backwards and forwards every time a customer came in. I could just reach down, pick it up, scan it, sell it and I could keep refreshing that during the morning." "I don't want it done like that." And I he[5] said, "You don't think of me. You never think of me." He said, "I have a bad back and you never think of me." And I said, "But this is thinking of you because if I put the faculty notes right next to the till under the counter all you have to do is just pick one up and scan it." "Well, that's not what - how I want it done." And I said, "Well, I'm going to need to do it that way because I don't want to keep walking backwards and forwards and wasting time. I want to serve the customers as quickly as possible. I know we're going to be busy and inundated for about probably an hour with these students coming in just before their lecture." So that's what I did and he got particularly nasty and I said, "Well - - -

What do you mean by that?---He said, "Well, I don't want you to do it that way. I don't want you putting them under the counter." And I said, "Well, I'm going to", because it was the first time I actually really stood up and said, "This is so illogical. Why would I walk backwards and forwards all day long when I could just reach under the counter?" I said, "You can serve your till walking backwards and forwards if you wish. I'm putting them under the counter." And as the morning went on he started putting them under the counter because another order came in into the [loading bay] and when he brought them back he started putting them under the counter, um, so anyway I waited and I had been really upset and it was building and building and building at this stage ...

... it was about twelve o'clock, and there was no more students in the store, and - because I would never, ever say anything in front of students or customers in the store. That would be totally unprofessional. So I waited until then, and I said - I walked over to him, and I said, "Kris, don't you ever say that I don't think of you, I was only acting in what I thought was a normal practice of just being normal, in a bookstore that it was ease of selling, this particular product", and he said - and I said "And I do think of you in this store. I don't know why you would say I never think of you", and he said, "Well why don't you just get out - get out of Legibook, and go and find another job, and just go away". So I was so upset I just turned, and I packed up my things, and I went, and I went out in to the car park, and I was in tears, and I was very upset, and I rang Paul Somers.

100 Cross-examining counsel suggested to the plaintiff that a time arrived when Mr Cowell was reaching under the counter to the plaintiff's supply of notes and he told the plaintiff that he found it difficult to have to reach down around her legs. The plaintiff, who appeared surprised by this suggestion, immediately rejected it. The cross-examiner suggested that most certainly in conversation Mr Cowell said it was inappropriate to be reaching around behind her body and, also, that he was having difficulty with his back. The plaintiff understood the point of leaving the notes on the pallet was for Mr Cowell to avoid bending over, because that was what he had said to her earlier.

101 Mr Cowell's evidence was that his concern, as he expressed it to the plaintiff, was that he wasn't comfortable reaching around her legs, which was why it would be better to leave a supply of stock on the pallet for his access. In cross-examination, it became clear that Mr Cowell accepted that the plaintiff had been locating a stock supply of the notes under the counter for her own convenience because he stopped complaining about that. There was always stock on the pallet. Mr Cowell always had a choice whether to source stock for a sale from the pallet or from under the counter because the supply on the pallet was never exhausted.

102 Mr Cowell's evidence was that the 'argument' occurred after the plaintiff returned from the bank, having stewed about the events of the morning and become agitated. He also referred to reconciling, and possibly banking, the day's takings himself at a later point after the plaintiff left. When the plaintiff was cross-examined about the chronology of events on that day, including as recorded in the plaintiff's diary, the proposition that she had gone to the bank was not put to her. Following an overnight adjournment, Mr Cowell told his counsel he had reflected on the timing of the 'argument' and he put it at 10 minutes before the bookroom closed when the reconciliation had not been done and the plaintiff could not have done the day's banking.

103 When cross-examined, Mr Cowell agreed it was reasonable for the plaintiff to have questioned what had occurred over the trust notes. Although he agreed that he lost his self control, Mr Cowell maintained that he was agitated, not angry, because she was agitated. They were each shouting. An agitated, shouting man who is not exercising self-control may be perceived, reasonably, as angry. Mr Cowell was challenged about his evidence about the banking and he suggested that the plaintiff had not banked that day's takings, but shortly prior to closing for the day, she had gone to the bank with only the previous day's takings. Mr Cowell was reconstructing his evidence. I do not accept that Mr Cowell's recollections of the day's events was accurate, reliable, or probable.

104 I am satisfied that Mr Cowell's evidence about this day was enhanced by reconstruction for other reasons. His original explanation was unconvincing. The evidence demonstrated that there was always a supply of the notes remaining on the pallet at the rear of the shop. There was no need for Mr Cowell to reach behind or around the plaintiff's legs because at all times he could retrieve a copy of the notes from his preferred location. Mr Cowell's primary concern had appeared to be the strain on his back from bending and squatting. The suggestion that the action of obtaining a copy of the notes involved uncomfortably reaching around the plaintiff's body found no contemporaneous expression. I am satisfied that Mr Cowell made up the issue of his discomfort in having to reach around the plaintiff's body to enhance his justification for not permitting the notes to be stacked under the counter in the usual place when it became clear that the 'back problem' justification was, at best, unconvincing. His concern could not reasonably have been about his access to a supply of the notes because the supply on the pallet at the back was never exhausted. He never needed to take notes from under the counter and I am not satisfied that when he did he was either experiencing discomfort in his back or discomfort from reaching around the plaintiff. Mr Cowell was being aggressive, and controlling, towards the plaintiff. He was, yet again, bullying her.

105 Mr Cowell's evidence about key statements made in their conversation on 24 July 2007 was also reconstructed to place him in a more favourable light. I do not accept that, in his angry state, he said 'If you can't work with me at Legibook why don't you go and seek another job'. I prefer the plaintiff's evidence. It is supported by Mr Somers, who recorded contemporaneous diary notes of his conversations with the plaintiff and Mr Cowell within an hour of this altercation. Mr Somers had no independent recollection of this conversation beyond his note and the relevant part of the note reads:

- did you say "go home and look for another job"

- she said "I'll have you up on bullying"

- if you don't like it, go away

- I sent her home b/c both voices raised & not productive.

Mr Cowell agreed with the cross-examiner that the plaintiff said she'll have him up on bullying as her response to his statement 'if you don't like working for me, why don't you find anther job'. Mr Cowell denied making the next recorded statement. That was the only part of the note that he disputed. I do not accept this denial. I find that Mr Somers knew that the situation between the two of them had blown up. He understood the history of their relationship, its significance for Legibook and the need to carefully record what he was told. His contemporaneous note represents the best independent evidence of what was said by each of the participants in this altercation. Even allowing for the fact that their retelling of an emotionally charged event might not be perfect, it is probable that the exchange between them was substantially as Mr Somers recorded it and I so find.

106 Further, Mr Cowell's substantive recollection of the incident was that he behaved badly. He recalled that she was not happy with the way he had spoken to her and said so. She said she was sick and tired of him, and it escalated from there. Asked about the argument that resulted in the plaintiff leaving the premises, Mr Cowell said:

Yes, the substance was that she wasn't happy, and that I criticised her, and she didn't deserve the criticism, and that it was wrong of me to doubt that she didn't have the best interests of what was going on.

In cross-examination, he accepted that this assessment only addressed the earlier stages of the exchange, not her allegation that he was a bully and his response to that allegation.

107 Mr Cowell responded to the plaintiff's reasonable chastisement of him for the way he had told her to get out in terms that made plain that he didn't want to work with her at all, that he had had enough of her, and that she should find another job. She then told him he was a bully. Significantly, Mr Cowell did not deny that characterisation. His response to her suggestion that he bullied her was if she didn't like it, she should go away. That was, for the plaintiff, both a validating admission of her perceptions and a statement that his bullying would not end unless she left Legibook. Being an assertive woman, she responded that when she left Legibook, it would be on her own terms.

108 I find that on 23 and 24 July 2007 Mr Cowell continued his pattern of verbally harassing and intimidating the plaintiff with his authoritarian and controlling attitude during the incident sparked by the location of the trust lecture notes. However, the plaintiff's capacity to continue absorbing the stress of his conduct, was then rapidly evaporating. When she stood up for herself, Mr Cowell expressed his real feelings when, rather than deny that he was a bully, he told her to go and find another job elsewhere and not come back to Legibook. Although she was assertive to his face, in denying his right to treat her this way, it was from this point, and probably as a result of his admission of her perceptions, that the plaintiff's capacity to cope with the way that she had been and was continuing to be treated by Mr Cowell deserted her.

109 Distressed and intimidated, she retreated to the car park and telephoned Mr Somers at 12.45 pm. Mr Somers noted that the plaintiff told her that Mr Cowell regards Legibook as 'his', that he was a control freak who was horrible to work with. She had put up with his inexcusable behaviour for five years and was finding it increasingly difficult to work there. He had just told her to go home and to look for another job. She told Mr Somers she had been bullied.

110 At 1.10 pm Mr Cowell called Mr Somers. Mr Somers' note of this conversation records that Mr Cowell said he was not in the best mood. The plaintiff had said to him 'I'll have you up on bullying'. Mr Cowell disputed that he said to Mr Somers that he said to the plaintiff 'If you don't like it go away' but I accept Mr Somers' contemporaneous note as accurate. He recorded that Mr Cowell told him 'I sent her home because we both had our voices raised and it was not productive'. Mr Somers recalled that Mr Cowell accepted that because he was in charge and had let the situation get out of control it was his fault. He agreed to apologise to the plaintiff to say that if he upset her by what he had said today he was sorry.

111 By 3.00 pm that day, Mr Somers had informed the board of this further allegation by the plaintiff of workplace bullying by Mr Cowell. I am satisfied that Mr Somers accepted that Mr Cowell had been bullying the plaintiff. The board was informed that the plaintiff was prepared to return to work the following day and that she wanted to keep working at Legibook. Although Mr Cowell disagreed with the plaintiff's version of events, he accepted that he had allowed a situation to get out of control and had responded inappropriately. Unsurprisingly, Mr Somers had immediately recognised the need for the board to expedite the stalled completion of employment contracts, a process which had been commenced over 4 years earlier in April 2003, to reduce the potential for conflict. Mr Somers now recognised a need to involve an external workplace seminar or counsellor to address appropriate workplace conduct and a need for immediate close monitoring of the feelings and conduct of both members of staff. Mr Somers reminded directors that 'We have legal obligations to provide a safe workplace for employees, both physically and mentally', and that possibly a discloseable event for insurance purposes had occurred. An obligation both legal and moral to formally respond to the plaintiff's allegation was noted.

112 The following day, at the suggestion of her husband, the plaintiff provided Mr Somers with a copy of the Monash University policy on the prevention of bullying and occupational violence at the university. Meanwhile, the board formally engaged Russell Kennedy solicitors, the firm where Mr Somers worked as a solicitor. Mr Paul Ronfeldt suggested that they engage a workplace consultant, Mr Michael Jensen.

113 On the evening of 25 July 2007, Mr Somers told the plaintiff to take a few days off and return to work the following Monday when a mediator would be available to work separately with each of them.

114 When the plaintiff returned to Legibook the following Monday, Mr Cowell apologised to her. She described the apology as unsatisfactory. She was sitting at her desk while he sat at the computer terminal with his back to her. He said 'I'm sorry if I let everything get out of hand. I'm sorry if I caused you any distress'. He was typing on the computer as he delivered this apology, which the plaintiff found to be insincere and upsetting. It was followed by almost complete non-communication between them for the rest of the day. Even the radio was off. Mr Cowell had written notes on a whiteboard so that the plaintiff did not have to ask him any questions. The plaintiff found this situation increasingly distressing.

115 By the Thursday morning, when she was scheduled to meet with Mr Jensen, she was unable to get out of bed because she was too distraught. Her husband assisted in arrangements made for her to meet Mr Jensen at a coffee shop in a shopping mall.

116 Michael Jensen had qualified as a solicitor and practised for two years before forming, with a clinical psychologist, a private consultancy firm specialising in workplace issues. Mr Jensen had a degree in psychology but was not qualified as a clinical psychologist.

117 He believed that he had been engaged directly by Legibook to mediate this situation between the plaintiff and Mr Cowell. Mr Somers briefed Mr Jensen with background and he then met with each of Mr Cowell and the plaintiff. He concluded that a mediation process would be inappropriate for reasons that included his concern for the plaintiff's health and his view that Mr Cowell did not have the appropriate attitude for a successful mediation.

118 By this stage Mr Somers had a dysfunctional workplace. The plaintiff informed Mr Somers that she could not handle working in a stony silence as Mr Cowell pretended that nothing had happened. When Mr Jensen reported back to Mr Somers and Mr Ronfeldt, his instructions were changed. Mr Jensen stated that it was not his practice to conduct such mediations, or preliminary investigations concerning their suitability, on a confidential basis. He did not treat his changed instructions as warranting confidentiality either. Mr Jensen and Mr Somers, with Mr Ronfeldt, developed a project for Mr Jensen to report about what had occurred in the workplace. Each of Mr Cowell and the plaintiff would receive, independently, professional counselling from Mr Jensen's business partner, Mr Peter Veenhuisen.

119 Mr Jensen reported on 3 August 2007. His report set out the allegations that had been made by the plaintiff and the response received from Mr Cowell, with Mr Jensen's assessments of these allegations and responses. Mr Jensen's advice and recommendations in his report are of no assistance to the court and have been ignored. Mr Jensen's accuracy as a note taker was not challenged. Mr Cowell mostly accepted that he had responded as Mr Jensen had recorded. He took issue with Mr Jensen's statement that he referred to the plaintiff as being 'like a teenager'. Mr Cowell maintained that he did not use those words but had suggested that the plaintiff had a propensity to ask him rather than look for herself. Mr Jensen used the phrase 'He also added that managing her is like dealing with a child' and Mr Cowell conceded that he had used words to that effect, perhaps wrongly trying a crude analogy.

120 I prefer Mr Jensen's evidence to that of Mr Cowell. On the basis of my findings as already stated, I am satisfied that Mr Cowell did regard dealing with the plaintiff as like dealing with a child or a teenager. In many respects his attitude towards the plaintiff, as she recounts it, was consistent with Mr Cowell holding that opinion. In his detailed response to Mr Jensen about what happened on 23 and 24 July, Mr Cowell made no mention of being concerned about bending around the plaintiff's legs or behind her, as he suggested in the witness box was his concern. I am satisfied that Mr Cowell was reconstructing this concern.

121 Mr Jensen told the plaintiff the substance of his recommendations to Legibook. She understood that Mr Jensen was very concerned for her health and thought that Mr Cowell was unfit for any workplace and should be sacked and that the plaintiff should never work together with Mr Cowell again.

122 On 6 August 2007, the plaintiff consulted her general practitioner who referred her to a clinical psychologist.

123 On 17 August 2007, the plaintiff met with Mr Somers and Mr Esnault at the office of Russell Kennedy solicitors when Mr Somers explained, yet again, that the board intended to resolve the situation by bringing in employment contracts, workplace policies, counselling for each employee and a system of separate split shifts so that they would not work together. On 30 August 2007, the defendant wrote to each of the plaintiff and Mr Cowell explaining their proposal and confirming the observations and recommendations that had been made by Mr Jensen. The defendant sought written consent to participate in the proposed psychological assessment.

124 In its letter to Mr Cowell, the defendant confirmed that it had accepted the observations and recommendations that had been made to it by Mr Jensen stating:

Mike Jensen has found that your conduct towards Wendy Swan constituted workplace bullying, particularly where you:

(1) displayed anger towards Wendy;

(2) made comments that made her feel unwelcome or demeaned; and

(3) made other comments or displayed other forms of conduct that suggested to Wendy that you have a low regard for her.

The board hopes to see the restoration of a safe, productive and positive working relationship between you and Wendy Swan. In order to enable you to achieve this, the board has determined with Mike's assistance a process that involves the provision of a range of professional support to both you and Wendy Swan.

In the event that the board is not assured that the preliminary evaluation report demonstrates that there are well founded prospects that the relationship between you and Wendy Swan can be restored to being a safe, productive and positive working relationship, or if you engage in any further conduct that constitutes workplace bullying, the board will have no alternative but to terminate your employment.

125 In a letter to Mr Veenhuisen of the same date, the board engaged him to undertake a psychological evaluation of each of Mr Cowell and the plaintiff and it stated that:

Mrs Swan has recently complained of Mr Cowell's treatment of her, suggesting that he has bullied and victimised her. An investigation by the board, with the assistance of Mike Jensen, has determined that Mr Cowell's behaviour has been inappropriate and requires immediate modification.

126 On 3 September 2007, the plaintiff provided her written consent to participating in the process while also accepting the board's offer to provide free confidential counselling with a counsellor of her own choice. Mr Cowell appeared to be prevaricating about consenting to the process and the board on 13 September 2007 restated its determination that his conduct towards the plaintiff was inappropriate and constituted workplace bullying. In reality, as Mr Cowell explained in the witness box, shortly after receiving the letter of 30 August 2007 he decided to seek alternative employment. Although he resigned his position, the plaintiff believed that he was dismissed.

127 The plaintiff called two witnesses to give opinion evidence. The first was Toni Mellington, a clinical psychologist specialising in workplace psychology and health psychology. The second expert called was Dr Anne Wyatt. I accept the evidence of each of these witnesses.

128 Ms Mellington gave evidence of possessing particular experience with workplace bullying including specialist academic training and academic writing and some conference presentations on the subject. She had prepared reports and given evidence in court on prior occasions. Her expertise was not challenged.

129 Ms Mellington's opinions were expressed on the basis of assumptions drawn from an interview with the plaintiff conducted over Skype and documentation provided by the plaintiff's solicitors. Ms Mellington accepted that the relevance of her opinions was dependent upon acceptance of her assumptions, on which she was extensively cross-examined. Ms Mellington administered a 'Workplace Bullying Inventory', which she had developed, and from which she concluded that the plaintiff reported being exposed to a variety of behaviours that could be considered to form a repeated pattern of unreasonable behaviour that creates a risk to health and safety. She considered that the book throwing incident and the calculator incident were examples of occupational violence. In the inventory testing, the plaintiff identified the following behaviours, which produced a 'very severe' impact upon her:

• Using put downs, insults or sarcasm to regularly humiliate me.
• Being repeatedly shouted at or screamed at.
• Being spoken to in rude, foul or offensive language.
• Physical assault.
• Being deliberately left out of my workplace activities.
• Excessive scrutiny of my work and whereabouts.
• Intimidation and being threatened.
• Request for help or advice being constantly ignored.
• Having my views and opinions constantly put down.
• Repeated reminders of errors or mistakes.
• Given very little work to do.
• Threats of transfer or the sack.
• Information or equipment that I need to do the job being hidden / destroyed / deleted.

130 Ms Mellington further assumed that the plaintiff had been diagnosed by her treating medical practitioner Dr Judith Risely with an anxiety disorder with depression, secondary to sustained workplace bullying. Ms Mellington reviewed the comprehensive history provided by the plaintiff's treating psychologist, Ms Perrett-Abrahams and found it consistent with that provided by the plaintiff to her. She noted that Ms Perrett-Abrahams' diagnosis was of 'a chronic adjustment disorder with chronic depression and chronic anxiety' and that the plaintiff had suffered the injury following prolonged subjection to workplace bullying, abuse, and harassment. She noted that Ms Perrett-Abrahams' psychological testing indicated that the plaintiff has sustained severe depression and moderate to high anxiety. Ms Mellington also noted two psychiatric assessments. Dr Michael Epstein had concluded that the plaintiff had experienced 'a breakdown in her capacity for coping arising from workplace harassment, manifest by the development of a chronic adjustment disorder with anxious and depressed mood'. Dr Paul Kornan considered that 'her symptoms clearly indicate the more significant situation of her having, in fact, not just an adjustment disorder, but of her generalised anxiety symptoms and also features of a major depressive disorder'. Each of these practitioners confirmed these opinions in evidence at trial.

131 In the plaintiff's self-assessment by the Workplace Bullying Inventory, such behaviours were rated as 'very severe' impact. When cross-examined, Ms Mellington was unable to recall or give examples that specifically illustrated the behaviours that she assumed. I am satisfied that the identified assumed behaviours have been substantially established on the evidence and that the opinions expressed by Ms Mellington are relevant and admissible. I am satisfied that Ms Mellington treated the plaintiff's impact ratings as subjective information. Ms Mellington suggested that Mr Cowell's behaviours might be described as a 'managerial control tactic'.

132 Ms Mellington correctly assumed, from documentation provided to her, that the board had acknowledged the complaint of inappropriate behaviour in the workplace but had inappropriately failed to investigate and follow up on such complaints with appropriate intervention. While reporting such behaviour to the employer was an appropriate action for the plaintiff to have taken, research shows that response to be the most unsuccessful action for resolving bullying. Inappropriate organisational responses can in fact further harm an employee. In this case, it appears that the defendant appropriately identified a need to intervene, and need for policies, procedures, induction check lists and position description, but inappropriately these interventions were not forthcoming. Drawing on research that demonstrated that poor workplace organisation creates positive motivation for supervisory bullying, Ms Mellington suggested that the defendant's response to the plaintiff's concerns were insufficient, not timely, and inappropriate. The board's response could be considered a contributing factor to enabling harmful behaviour to continue.

133 In Ms Mellington's opinion, the referral of the complaints to Mr Jensen in 2007 was an appropriate action to be taken by the board. However, in her opinion, this intervention was unreasonably late and ought to have been initiated in 2003. Ms Mellington explained that early intervention by the employer is essential for a workplace bullying target to avoid injury because the mutual relationship between bullying and psychological distress can indicate a vicious cycle where bullying and distress reinforce their own negative effects. The medical evidence supported this observation. She concluded that the documentation suggested that the board was aware not only of the plaintiff's concern but also of the risks and had ample opportunity for earlier intervention. Inaction by an employer, as here occurred, can result in poor workplace organisation which in turn creates positive motivation for supervisory bullying. Further, it appeared to Ms Mellington, and I accept that this is so, that the repercussions of the board failing to follow through on their committed action was interpreted by the plaintiff as a lack of support and inaction, which her treating practitioners concluded contributed to her ill-health.

134 Ms Mellington suggested that psychological research showed that the steps that a reasonable employer could take to prevent and manage reported or observed negative workplace behaviour included:

• developing written policies on workplace bullying for proactive implementation;
• clear statements to all employees that the organisation does not tolerate workplace bullying;
• providing clear descriptions of the types of behaviour that constitute workplace bullying;
• appointing an appropriately trained contact person to facilitate information and support to employees;
• implementing the defined procedures for handling complaints;
• mandatory training of managers concerning such behaviour;
• training of employees in relation to workplace bullying, their rights and responsibility and the opportunities for assistance;
• encouraging a culture that empowers witnesses to workplace bullying to speak out and support colleagues in investigations; and
• procedures and processes for review and evaluation of behaviours in the workplace and the organisational response.

135 Ms Mellington added that research showed that bullying victims often do not recognise what is going wrong with them and they are unable to identify precisely why they are feeling bad and their health is deteriorating. Commonly, a victim will internalise what is going on and believe he or she has caused the behaviour to which he or she is exposed. The common responses of victims are that they just want the behaviour to stop and that they just want to do their jobs.

136 Ms Mellington was critical of the board's invitation to the plaintiff to indicate to the board what choice she wanted the board to make, particularly where that choice was offered in a communication about the board's proposed response that never eventuated. The likely psychological consequences was that the plaintiff would minimise her complaint and be less ready or willing to report issues in the future.

137 Dr Anne Wyatt, a psychologist, practises as a specialist consultant in occupational health and safety with particular expertise and special interest in psychological safety at work and workplace bullying. Her considerable professional experience and academic qualifications and writings were not challenged. She has considerable experience in providing expert opinions in relation to workplace litigation.

138 The assumed basis for Dr Wyatt's opinions was drawn from documents and reports provided by the plaintiff's solicitors, which are in evidence, and a two hour telephone interview with the plaintiff. Dr Wyatt noted that Legibook did not appear to have any relevant workplace policies, although the Monash University bullying policy provided a model which could have been adopted. There was no evidence of any occupational health and safety audits or inspections being carried out at the bookroom. The plaintiff had no proper position description, which was significant because 'role ambiguity' between Mr Cowell and the plaintiff appeared to increase tensions between them when clear job descriptions, including reporting lines, could have provided much needed clarification.

139 Dr Wyatt assumed that Mr Cowell's ongoing behaviour was characterised by the following conduct:

• Regularly threatening her with the sack when he did not have the power to do this.
• Throwing a book at the plaintiff intending to hit her.
• Not keeping her informed and waiting for her to make mistakes so he could correct them.
• Not completing his designated tasks, such as a reconciliation, and in doing so preventing her from doing her work.
• Butting into her conversations with inappropriate comments.
• Making instructional comments in front of big queues of students.
• Behaving unreasonably towards foreign females.
• Throwing the phone down a lot.
• Pulling down or not putting up signs.
• Vetoing the plaintiff's suggestions and then adopting them as his own several months later.
• Rearranging the furniture without consultation.
• Dismissing the plaintiff's occupational health and safety concerns about trip hazards, the trolley and other issues.
• Arranging the plaintiff's desk to preclude her view of customers entering the store and requiring her to twist and turn.

140 Dr Wyatt also noted that other persons such as students, lecturers and banking staff, who observed Mr Cowell's behaviour, would talk about it when he was not present.

141 Dr Wyatt was cross-examined on her notes at some length about the basis from which these assumptions about Mr Cowell's behaviour were drawn. Other assumptions made by Dr Wyatt, particularly concerning the defendant's response to the plaintiff's complaints, were not controversial, evident from the documentation with which she was briefed. Notwithstanding that Dr Wyatt was unable to recall specific or detailed examples of the conduct summarised on which her conclusion was founded and that not all examples have been proved by the evidence precisely as she described them, I am satisfied, on the basis of the findings I have made, that the plaintiff has sufficiently established the assumed facts upon which Dr Wyatt's opinions are expressed so as to render them relevant to, and admissible on, the issues to be determined in this proceeding.

142 Dr Wyatt's opinion was that the plaintiff was exposed to an unacceptable risk of psychological injury due to the unresolved, repeated bullying and violence that she experienced at work between August 2002 and August 2007. Mr Cowell's behaviour was, in the witness' opinion, repeated, unreasonable, and directed towards the plaintiff. It created a risk to the plaintiff's health and safety and thus constituted workplace bullying.

143 Dr Wyatt considered that the defendant failed to manage the hazard presented by Mr Cowell's unacceptable behaviours because it failed to properly investigate the complaints made in 2003. In her view, had satisfactory work processes been in place and procedures and practices then implemented to prevent or manage bullying and violence at work, the plaintiff would not have been as severely injured as she was.

144 Dr Wyatt considered that the situation revealed by the plaintiff's complaint in 2003 was not one of mere conflict or interpersonal disagreement. Severe bullying and violence had taken place; the gravity of which the plaintiff had clearly raised and she should not have been expected to continue to work in such an unsafe situation. In Dr Wyatt's opinion, a formal warning was then warranted.

145 Further, the defendant should have implemented a fully documented occupational health and safety risk management program with the following features:

• Policy development/enforcement and implementation (including about workplace bullying).
• Provision of adequate supervision, training and information.
• Risk identification, assessment and control.
• Consultation with employee/performance appraisal.
• Encouragement of hazard and incident reporting.
• Response to incident reporting.
• Grievance reporting.
• Disciplinary procedures.
• Implementation of hazard controls.
• Ensuring safe return to work procedures were implemented.
• Monitoring and evaluation.

146 For Dr Wyatt, it was significant that Mr Cowell, as the perpetrator, was not called to account by the employer. I agree. In Dr Wyatt's opinion, had the defendant implemented an appropriate organisational policy, the risk assessment would have identified hazardous behaviour and its potential to cause considerable harm to the plaintiff. I am satisfied that the defendant nonetheless had recognised the risk that the plaintiff might be harmed. Dr Wyatt considered that reasonable steps could have been taken to prevent the plaintiff's injury and had she been adequately supervised in terms of the safety of her system of work from the outset, it is likely that she would not have sustained injury. In expressing this opinion, Dr Wyatt drew on a Worksafe Victoria publication in February 2003.[6] Dr Wyatt considered that Mr Somers, as the plaintiff's supervisor to whom she reported her concerns from 2003 onwards, failed to properly manage the problem until it was too late. She suggested that Mr Somers may not have had the appropriate training that would have equipped him to better manage the situation. There was no evidence of any relevant training undertaken by Mr Somers or of his experience in the management of employees in a work place.

147 Dr Wyatt identified the following circumstances as critical:

(a) The plaintiff was never given a position description for her job. A position description would have given her a chance to point out how unreasonable and intimidatory the directions given to her by Mr Cowell were. The failure of the board to implement employment contracts and workplace policy caused the plaintiff to perceive that her complaints had fallen on deaf ears.

(b) Although it is well known that early reporting of hazards and timely and adequate follow-up decreases the risk of injury, the plaintiff recognised that the grievance procedure began with her report to Mr Somers in 2003 but the defendant failed to conduct an early investigation and timely follow-up or set up and implement formal documented policies and systems.

(c) In August 2007, the situation was far beyond remedy by counselling or mediation. Disciplinary action was called for and the plaintiff should not have been expected to continue to work with Mr Cowell when he had targeted her with severe workplace bullying over a long period of time.

(d) The circumstances of the plaintiff's return to work program were unhelpful. (I will come to this in due course.)

148 Once the board had the plaintiff's initial report of Mr Cowell's conduct in 2003, the likely continuance of the bullying hazard, if unchecked, was foreseeable. The plaintiff was working in an unsafe environment and the board failed to prevent her exposure to multiple workplace hazards.

149 The plaintiff's failure to more regularly report her ongoing concerns to the board throughout her employment were explicable. She did not consider that it was in her best interests to do so because she enjoyed every aspect of her job except working with Mr Cowell when he behaved unreasonably. She did not want to lose her job. Secondly, it appeared that the plaintiff stayed for so long in the job because she had never had problems in a workplace before and thought that she could cope. Dr Wyatt considered that the plaintiff, for some time, truly believed that she could work around the unacceptable behaviours that were perpetrated on her because every other aspect of her job gave her great satisfaction. Dr Wyatt's experience was that fear of job loss, job satisfaction and status often compel people to stay in appalling work situations.

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

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

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

151 In Mount Isa Mines Ltd v Pusey,[7] Windeyer J observed that, 'It is however today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had'. As Sheller JA observed in O'Leary v Oolong Aboriginal Corporation Inc,[8] cases in the ensuing four decades since Mount Isa Mines Ltd v Pusey 'demonstrate judicial recognition that the medical profession's view of the aetiology of such disorders has been accepted by the lay world'.

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

153 On the basis of the findings that I have expressed above, I am satisfied that Mr Cowell engaged in an established pattern of workplace bullying as so described. He did so, particularly in the period from August 2002 to April 2003. I am satisfied that his behaviour during that period, as I have found it, would be expected by a reasonable person to humiliate, intimidate, undermine or threaten the plaintiff. The incidents of occupational violence were, from 2003, intermittently reinforced with an expectation that such violence might be repeated, engendered by other conduct that did not involve an immediate apprehension of physical violence throughout the period of the plaintiff's employment by the defendant until August 2007. Although the pattern of Mr Cowell's behaviour was episodic and, after 2003, not characterised by explicit incidents of occupational violence, his conduct characterised the work environment as one in which the plaintiff was subject to stress and emotional distress, humiliation and belittling conduct, intimidation and aggressive managerial direction. In a restricted and confined workplace environment, such behaviours imposed substantial, and significant, emotional stress and distress on the plaintiff. I find that Mr Cowell's conduct in the workplace threatened to, and did, damage the mental health and wellbeing of the plaintiff throughout the course of her employment by the defendant.

154 On the pleadings, the plaintiff put her claim as a direct liability of the defendant to her for an unsafe place and system of work and a failure to efficiently supervise her work. The defendant admits that it was at all material times under a duty to the plaintiff to take reasonable care for her safety by providing a safe place of work and a proper and safe system with efficient supervision.[9] This admission does not address the important issue in this case which is, in the context of a claim for work related psychiatric injury, the content of an employer's duty of care. Rather, the admitted duty is so broad as to be devoid of meaningful content. As the High Court stated in Kuhl v Zurich Financial Services Australia Ltd[10]:

Different classes of care may give rise to different problems in determining the nature or scope of a duty of care. In many cases a duty formulated as being one to take "reasonable care" may suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with the retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the "high level of abstraction" spoken of by Glass JA in Shirt v Wyong Shire Council. But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term "reasonable" and hence the content of the duty of care. These are matters essential for the determination of this case, for without them the issue of breach cannot be decided. The appropriate level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the case.[11] [Citations omitted]

155 In the leading decision Koehler v Cerebos (Australia) Ltd,[12] the High Court rejected the proposition that reasonable foreseeability alone was the determinant of the content of the duty of care in a psychiatric injury case. As observed in Kuhl, the scope and content of the duty necessarily depend on the circumstances of the case. Psychiatric injury in the workplace can be suffered in at least two distinct scenarios, bullying and employee behaviour circumstances, and also overwork or workload circumstances. The authorities discussing workplace psychiatric injuries should be read with this distinction in mind. Koehler was not a bullying case. In that case the plaintiff had told her supervisor on many occasions that she could not cope with the volume of her work. Although she suggested ways to solve the problem, she did not tell her employer that her health was being affected. The employer did not adopt her suggestion that she was unable to maintain her performance of the workload and she was diagnosed with a psycho-physical disorder.

156 In Hegarty v Queensland Ambulance Service[13] Keane JA (as his Honour then was) referred to Koehler in the following terms:

In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 esp at 53-55 [19]-[25] it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that "the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer." Further, "litigious hindsight" must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.[14]

157 In Hardy v Mikropul Australia Pty Ltd,[15] J Forrest J drew the following further factors from the High Court's analysis in Koehler as relevant in determining the content and scope of an employer's duty of care:

(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.

Forrest J too was not concerned with workplace bullying. The plaintiff in that case sought damages for a depressive illness associated with alcoholism and drug addiction that he contended were caused by being exposed to a drinking and drug culture with his fellow employees in, and about, his employment.

158 In Taylor v Haileybury,[16] Beach J agreed with Forrest J's analysis of Koehler in Hardy. The plaintiff in Taylor claimed damages as a result of a psychiatric breakdown caused by overwork in the course of his employment as a school teacher.

159 Before me, the defendant contended that the following observations of the plurality in Koehler, that were influential in the reasoning of Beach J in Taylor, were equally persuasive in the present circumstances:

[33] In Tame v New South Wales, the Court held that 'normal fortitude' was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. 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.

[34] 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. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.

[35] 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. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.[17]

160 In the context of Koehler what was significant was that although the employee had made many complaints to her superiors, none of those complaints suggested that her attempts to perform her duties would put her health at risk. She did not suggest any vulnerability to psychiatric injury or that the work was putting her at risk of such an injury. Her complaints may have been understood as suggesting an industrial relations problem, but they did not suggest danger to her psychiatric health. Legibook contended that these considerations were here apposite.

161 In Taylor, Beach J drew from the decision in Hegarty a number of observations with which he agreed:[18]

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

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

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

164 Returning to the propositions drawn from Hegarty, here the risk of injury was apparent and was seen by the defendant in 2003. This case does not turn on any vagaries or ambiguities of human expression and comprehension. The board minutes and the email and other communications by Mr Somers demonstrate a plain anticipation of a risk of psychiatric injury to the plaintiff from Mr Cowell's conduct, as the plaintiff described it. The third point lacks traction in these circumstances because when the appropriate response of an employer to the plaintiff's complaint is identified by expert opinion, it is plain that to a significant degree the defendant recognised in 2003 what it needed to do. There is no need to debate whether what it thought it needed to do was sufficient because it did nothing at all.

165 The other considerations identified, although generally important, must be evaluated in the context of the plaintiff's complaint to the board. Bearing in mind the expert opinion before the court, in my view these considerations reinforce the culpability of the defendant's failures to act promptly and decisively in 2003 and to have done in 2003 what it recognised as an appropriate response in 2007.

166 The defendant contended that the plaintiff's complaints did not indicate either explicitly or implicitly any particular vulnerability on her part to Mr Cowell's conduct or any vulnerability to stress other that what is an inevitable concomitant of everyday life including working life. The defendant contended that the plaintiff coped with Mr Cowell's behaviours and never complained of distress or of any symptoms that might, even implicitly, forewarn of possible psychiatric injury. Further, the defendant contended that it would have been inappropriate, arguably a breach of duty in itself, for Mr Somers, or any other member of the board, to have spoken with Mr Cowell about the issues when the plaintiff had asked them not to do so.

167 I do not accept that characterisation of the plaintiff's response in 2003. First, she plainly stated she did not wish to feel threatened or uncomfortable in her workplace and the board members, between themselves, referred to her complaint as one of being bullied. This was not everyday workplace stress that had been consented to by the employee in taking the position. Second, the risk of psychiatric injury from bullying behaviour is well understood. That consequence is not far fetched or fanciful. In fact, it was appreciated by the board. Third, all the plaintiff was invited to do was to make a choice between a formal warning to Mr Cowell and doing nothing. In the context of an express indication that other steps would be taken by the board, while the plaintiff may have agreed in those circumstances that Mr Cowell not receive formal warning, she did not agree, as the defendant submitted, that it was inappropriate to have spoken with Mr Cowell about the board's expectations, in general terms, about workplace bullying issues or appropriate workplace behaviour in the bookroom. Moreover, her 'choice' was plainly made in the context of a representation by the board about the action that it proposed, and later failed, to take. Finally, the employer is under an affirmative obligation to actively consider amelioration of a risk of injury and cannot abrogate that responsibility to its employee.

168 As my findings demonstrate, no question of foreseeability, objectively assessed, of a risk of a psychiatric injury to the plaintiff from conduct of the type complained of arises in this case. Mr Somers was told in writing that the plaintiff considered she was working under very strained conditions because she was being continually subjected to sarcasm, hostility, rudeness and violent behaviour, threat of termination or lack of consultation within the workplace. Mr Somers immediately appreciated that such an environment within Legibook could cause a psychological or psychiatric injury to the plaintiff and the board's awareness of that risk is plainly evident in minutes of its meetings and in written communications between directors from 25 March 2003. The duty of care to take reasonable care for the plaintiff's mental health in the context of a risk that she might be injured by workplace bullying was engaged by this time.

169 In New South Wales v Fahy[19] Gummow and Hayne JJ emphasised that what an employer, acting reasonably, must do by way of care for an employee is an issue which 'requires looking forward to identify what a reasonable employer would have done, not backward to identify what would have avoided the injury'. While recognising the need for circumspection in the evaluation of a reasonable employer's response to the plaintiff's complaint in March 2003 by reference to the general observations from Hegarty that I have set out above, I am satisfied that the defendant did not exercise the standard of care reasonably expected of an employer in the circumstances.

170 Although UK cases must be approached with care, the decision of the Court of Appeal,[20] in four appeals heard together, involving workplace induced psychiatric injury is instructive, particularly on the question of breach and the response of a reasonable employer. All of the appeals concerned stress from working conditions, but the appeal in Jones also raised issues of stress through harassment by another employee. It was a case where the job itself made unreasonable demands upon a junior employee, and the management response to her complaints was itself unreasonable.

171 In general observations applying on each appeal, after reviewing the authorities, Hale LJ (as her Ladyship then was) delivering the judgment of the court, identified, inter alia, the following practical propositions relevant to breach.[21]

(a) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

(b) The size and scope of the employer's operation, its resources, and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

(c) An employer can only reasonably be expected to take steps that are likely to do some good: the court is likely to need expert evidence on this.

(d) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.

(e) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.

(f) In all cases, therefore, it is necessary to identify the steps that the employer both could and should have taken before finding him in breach of his duty of care.

Although this list of considerations is of some value, I would not myself commit to fourth and fifth propositions as applicable in Victoria, but neither consideration is relevant to the present case.

172 In the Jones appeal, although there was no specific medical event that might have alerted her employers to the risk of the breakdown that occurred, the employers did know that excessive demands were being placed upon Mrs Jones. They also knew that she was complaining of unreasonable behaviour by her immediate manager. These complaints were taken sufficiently seriously for extra help to be arranged, not once but twice, but it was not actually provided. She made two written formal complaints that problems at work were causing harm to her health. The question was not whether the conduct had in fact caused harm to her health before her breakdown. Rather, was it foreseeable that the (conduct complained of) carried that risk for it to be a breach of duty for the employers to continue placing unreasonable demands upon Mrs Jones and not to follow through their own decision that something should be done about it.

173 The court concluded that the evidence before the judge was sufficient to entitle him to reach the conclusion that it was. Hale LJ relevantly stated:[22]

Once it is concluded that the combination of the way in which she was being treated and her formal complaints about it made injury to her health foreseeable, it is not difficult to identify what might have been done to prevent the injury which in fact occurred. The judge was entitled to conclude that failure to do this caused her breakdown.

174 Apposite to the present circumstances is the finding of breach in Jones based on the failure of the employer to follow through their own decision that something should be done. In the Barber appeal, Hale LJ suggests[23], obiter, that the employer may have breached a duty of care, if engaged, by failing to make further inquiries had Mr Barber, at the relevant time, not simply told his employer that he was not coping well, but made a more explicit reference to his health explaining the symptoms he was experiencing.

175 In expressing my findings as to breach, I draw generally on what I have set out above including the evidence of the witnesses Mellington and Wyatt. Three particularly significant matters occurred in March 2003.

(a) The board resolved that the plaintiff 'did not have to put up with this conduct' and that Mr Cowell should not have engaged in conduct that 'marginalised the plaintiff'.

(b) The board recognised the want of position descriptions, employment contracts, and behaviour policies was an omission by it requiring rectification.

(c) Although the board failed to further investigate the complaint, and failed to rectify its identified omission, it also failed to give any direction to Mr Cowell about his dealings with the plaintiff. Its inaction came despite recognising that because of its omission to give direction prior to April 2003, Mr Cowell had developed some 'rather arbitrary and brusque work practices' in his dealings with the plaintiff. One member of the board, Mr Fowles, considered that counselling of Mr Cowell was warranted and he wrongly believed that Mr Somers had actually done so.

176 I am satisfied that the behaviour of the defendant from March 2003 through until August 2007 fell short of the expected standard of an employer in the following respects:

(a) The defendant failed to properly define the relations between it and its employees and its employees inter se and articulate its expectations concerning conduct in the workplace between employees, by job descriptions, employment contracts and workplace behaviour policies.

(b) It was immediately clear to the defendant in March 2003 that a want of written position descriptions, written employment contracts and workplace behaviour policies was contributing to the conflict between their two employees. The defendant's ongoing failure to put proper job descriptions, employment contracts and workplace behaviour policies in place was never explained. That inexcusable and unjustified conduct breached its duty of care to the plaintiff.

(c) Further, the defendant's failure to take those steps was exacerbated by its repeated misrepresentations to the plaintiff that employment contracts, written job descriptions and workplace behaviour policies were imminent.

(d) The board failed in 2003 to introduce defined procedures for complaints of inappropriate behaviour in the bookroom, or to appropriately train its employees and its own members to deal appropriately with such behaviour and complaints when it was occurring.

(e) It was inappropriate for the defendant, purporting to act as a reasonable employer, to rely on choices made by its employee as to the employer's proper response to the employee's complaint especially when such choices were, at least, induced by those misrepresentations. Seeking assurances from the plaintiff that she was happy with the board's handling of her complaint in the circumstances constituted an inappropriate response.

(f) In considering the plaintiff's complaint in March 2003, the board recognised that it had given no direction to Mr Cowell as to his dealings with the plaintiff and that this seemed to have led to Mr Cowell developing some rather arbitrary and brusque work practices in his dealing with her.

(g) The board recognised that Mr Cowell was keen to make a good impression upon it and that appropriate workplace conduct should form part of an employee assessment concerning Mr Cowell. Although conceptually appropriate, the board was negligent in failing to follow through with any employee assessment that included consideration of appropriate workplace conduct.

(h) When determining in 2003 that a formal warning to Mr Cowell was not appropriate, the board failed to give any consideration to informal responses, for example, a direct personal communication with Mr Cowell that was not put in the context of any complaint from the plaintiff, about the nature of workplace conduct, including the way its employees related to each other that the board expected at Legibook.

(i) A reasonable employer ought to have directly investigated what was occurring in the bookroom and intervened appropriately to deal with what had occurred. Dr Wyatt considered that April 2003 was the appropriate occasion for intervention by engaging a workplace mediator or conciliator like Mr Jensen.

(j) The defendant had no formal system enabling employees to seek the assistance of the employer when bullying conduct occurred. This was evidenced in a number of respects. There was no complaints mechanism or system. Although Mr Somers liaised with employees on behalf of the board, the system was ad hoc. Further, there was no evidence that Mr Somers had any relevant training or experience and the board's response to the complaints in 2003 and 2005 supports the conclusion that he did not. Apart from the failure to conduct any formal investigation of the plaintiff's complaint, there was, in 2003 and 2005, no informal investigation either. Similarly, the board gave no informal warning and there was no discussion, even at a general level, with Mr Cowell. Consequently, the board never made a simple clear statement to Mr Cowell that it would not tolerate behaviour in the bookroom of a character that could constitute workplace bullying. Mr Cowell never knew of the board's attitude to conduct as described by the plaintiff, irrespective of any issue about whether such conduct had occurred, or might again occur.

(k) The board did not arrange for, or conduct for itself, any risk assessment, either generally or of the circumstances raised by the complaints in 2003 and 2005. The board failed to assess the risks that it identified in March 2003 could result in Workcover claims by the plaintiff. The board did not properly monitor, on an ongoing basis, the behaviour of its employees inter se. Its expressed intentions to 'chat regularly' with its employees resulted at best in occasional conduct mostly initiated by the plaintiff. This failure follows on its failure to implement any policy or process. In the relevant sense, that risk of injury to the plaintiff that the board identified was uncontrolled by it.

(l) A further consequence following on the absence of any policy or process concerning workplace conduct and behaviours was that Legibook's response to the plaintiff's complaints was inadequate, and its want of a complaint and grievance process permitted its inadequate response to fail all together, to slip away without appropriate resolution. Although the defendant submitted that the periods of no complaint, or of apparent calm in the workplace between complaints, were significant, I do not agree. To the extent that the submission was put to the existence of a duty, I have rejected it. The periods of apparent functionality in the bookroom did not eradicate or alleviate the risks that had been foreseen. When considering breach, a reasonable employer looking forward to identify what it should have done to avoid injury, having identified a risk, could not simply assume that a continuing absence of complaint, or renewed complaint, meant that the risk had abated. In this regard, the defendant is purporting to rely on aspects of its breach of duty - a want of risk assessment, follow-up procedures, and monitoring - to infer that the foreseen risk had resolved and its failure to take such actions was not in breach of its duty. I reject this contention. The absence of overt continuing behaviour, or complaint about behaviour, is not evidence that the risk of harm to the plaintiff's mental health identified in March 2003 had abated, or could reasonably be considered by a prudent employer to have abated.

(m) A further aspect of the lack of proper policy and process was that Legibook had no safe return to work procedure. The plaintiff's return to work process was not competently handled and will be further discussed below.

177 I am satisfied that the defendant failed to take reasonable care for the safety of the plaintiff, specifically in terms of her mental health, in these particular respects.

178 Since judgment was reserved at the conclusion of the trial, the Court of Appeal has, in Brown v Maurice Blackburn Cashman,[24] upheld the decision of a County Court judge rejecting a workplace bullying claim against an employer. The solicitor plaintiff's central allegation was that after she returned from maternity leave she was systematically undermined, harassed and bullied by a fellow employee solicitor in a law firm. It was alleged this conduct occurred or continued despite the plaintiff's complaints and requests for intervention made to the defendant's managing partner. The case involved an allegation of vicarious liability for acts of the employee and of direct liability for an unsafe system of work. The Court of Appeal referred to the definition of bullying, which I have set out above and which the trial judge had used, in evaluating the sequence of events, complaints and responses.

179 The circumstances of Brown invoked the concept of workplace stress that was injurious to health in both categories, that is, from the performance of agreed duties and from the alleged bullying conduct or behaviour of a fellow employee. Concerning the former, the court noted that the plaintiff's agreement to act as the managing partner of the Family Law Department ran contrary to the contention that the employer ought reasonably to have appreciated that the performance of her duties posed a risk to her psychiatric health. The court's analysis,[25] in accordance with the observations of the plurality in Koehler, of the trial judge's findings concerning the nature and extent of the work being done by Brown and the signs given by Brown led the employer to conclude that the plaintiff's complaints related to work management issues between two solicitors. It was only when Brown warned her employer that workplace stress was causing health issues, that a relevant duty of care was engaged.

180 The trial judge correctly assessed these complaints having regard to all the circumstances of the case including in particular the context and objective meaning of the acts complained of. Osborn JA stated:

Whilst I accept that MBC's duty of care to its employees was informed by its understanding of the potential link between work stress and the risk of psychiatric injury, MBC's knowledge of WorkSafe Victoria's guidance note on Prevention of Bullying and the managing partner's knowledge of Law Institute Journal articles identifying an obligation on legal practices to protect employees from the risk of psychiatric injury in cases of perceived harassment, none of these generalised background matters could be substituted for an examination of the facts in the case as a basis for postulating a duty of care.[26]

181 The plaintiff's case was said to be founded on objective allegations of bullying. The court rejected the attack on the trial judge's findings that there was no systematic harassment or repeated unreasonable behaviour and found no error in the individual findings made by the trial judge concerning harassment. Osborn JA, in Legibook's submission pertinently for this case, stated:

Insofar as it may be true that in a given case a series of inappropriate behaviours may collectively amount to bullying, when individually they would not, the facts as found by his Honour simply did not establish a basis for such a case. The appellant failed to prove materially inappropriate behaviours on the part of [the employee]. At best she established instances of robust expression of frustration concerning workload made to a departmental head. The appellant did not prove 'repeated unreasonable behaviour' directed towards her which created a risk to health in accordance with the definition of bullying adopted for the purposes of the case.[27]

182 The consequence was that the notion of cumulative harassment did not assist Brown in establishing that the risk of psychiatric injury was foreseeable prior to the date of her warning by reason of the conduct of the employee towards her. The findings of fact that no bullying occurred could not generate a reasonably foreseeable risk of psychiatric injury to Brown and that the informed response, that her employer well understood and which Brown claimed was appropriate in cases of bullying, was simply not called for.

183 This finding was significant since the critical task on the enquiry about breach of duty was to identify the reasonable person's response to foresight of the risk of occurrence of injury of the type which the plaintiff allegedly suffered. The consequence of the finding that there was no reasonable foreseeability of risk until the warning was that, because the employer responded appropriately to Brown's complaint promptly following Brown's warning, there was no breach of the duty of care once engaged.

184 Invited to make further submissions, the defendant contended that the circumstances of the present case were analogous with Brown and the interactions between the plaintiff and Mr Cowell were instances of robust expression of frustration and not repeated unreasonable behaviour directed towards the plaintiff which created a risk to her health. The absence of specific reference to any current or prospective impact of the conduct complained of on the plaintiff's health in her complaints in 2003 and 2005 precluded any finding that the duty of care was engaged before July 2007 following the plaintiff's call to Mr Somers.

185 I reject this submission. Brown does not stand for the proposition that the defendant's duty is not engaged until the bullying conduct is actually affecting the plaintiff's health. The duty is engaged when a reasonably foreseeable risk of psychiatric injury to the plaintiff is identified. The analysis of complaint about workload or work practices and foreseeability of the relevant risk is an analysis of the evidence in each case, and the facts of Brown are, in this respect, markedly different from the present case.

186 As I have found, when considering the plaintiff's complaint in March 2003, the defendant foresaw risk of occurrence of injury of the type which the plaintiff later suffered. That risk was not far fetched or fanciful. It drew a proposed response that, even though there was no follow through, demonstrates that the defendant's duty of care was engaged from March 2003. The defendant submitted, and I agree, that Brown identified a critical task of a trial judge to be to identify the reasonable person's response to foresight of the risk of occurrence of injury of the type suffered.

187 The opinion evidence from the psychologists emphasised the importance of early intervention to avoid or limit the damage and injury that flowed from sustained workplace stress and its resultant impact on the plaintiff. I accept that evidence. Further, I accept that the plaintiff herself did not recognise at the time that injury was being done to her, that she was sustaining damage. Although she recognised that she was experiencing some symptoms and was making a conscious decision to cope with her circumstances, it was only in hindsight that she identified that she was sustaining an injury. I accept that a plaintiff can suffer a breakdown through the cumulative effect of bullying and harassing conduct and that this is what occurred here. The plaintiff's illness was manifest when she broke down in late July 2007.

188 The overwhelming views of the medical experts were consistent with her history. All of the medical experts accepted that the bullying and harassment the plaintiff suffered, when employed at Legibook, was a significant contributing factor to her illness. The sustained exposure of the plaintiff in the workplace to the conduct of Mr Cowell caused her injury and her present symptoms.

189 The defendant raised a particular issue concerning the plaintiff's predisposition to psychological injury, which I will discuss when dealing with the medical evidence. Legibook did not persuade me that any factor other than Legibook's tort caused the plaintiff's psychiatric injury. The evidence could not establish at all, let alone with any precision, what the plaintiff's pre-existing constitutional factors were and what her future would likely be. A reduction in the damages compensating the plaintiff for her pain and suffering due to any contribution from her natural personality or the pre-existing constitutional factors is not required.

190 I am satisfied that had the defendant acted prudently and appropriately in 2003, it is likely that the plaintiff would not have suffered any, or any significant, psychological injury and that the defendant's negligence, as I have found it, was a cause of her injury, loss and damage. The defendant's conduct operated as a cause of the plaintiff's injury because she was unnecessarily and unreasonably exposed to stress factors in her employment that cumulatively broke her mental health. Had the defendant intervened as a reasonably prudent employer would have done, that exposure to damaging stress factors would have been eliminated or alleviated, in severity, duration, or repetition.

The course of treatment and assessment of the plaintiff's injury

191 On the issue of the plaintiff's injury and its consequences, I received evidence from the plaintiff, her husband, her general practitioner, Dr Judith Risely, her treating psychologist, Ms Diane Perrett-Abrahams, and two forensic psychiatrists, Dr Michael Epstein and Dr Paul Kornan. I accept the evidence of each of these witnesses. The defendant called evidence from a further forensic psychiatrist, Dr Alan Jager. I will, in due course, explain my reason for not accepting the evidence of Dr Jager. In addition, the plaintiff tendered reports from Dr Jeremy Banky, a dermatologist, Dr Peter Hayes, a dentist, Dr Paul Hermann, an osteopath, Dr Michael Jelinek, a cardiologist, Professor Paul Nestel, a physician, Dr Peter Selvaratnam, a specialist musculoskeletal physiotherapist, Mr Michael Silverstein, an ear, nose and throat specialist, Dr Michael Stubbs, a dental specialist, Dr Helen Sutcliffe, an occupational physician, Diana Svendsen, a physiotherapist, and Myriam Westcott, an audiologist. Medical reports were obtained on behalf of the defendant from Dr Timothy Entwistle, a psychiatrist, Professor Ivor Jones, a psychiatrist, Dr David Weissman, a psychiatrist, Dr Rod Farnbach, a psychiatrist, Associate Professor Jack Gerschman, an oral medicine specialist, Mr Robert Wilks, a clinical psychologist, Mr Garry Sherman, an ear, nose and throat specialist, and Dr Angas Hamer, a cardiologist. All of these reports have been considered.

192 The plaintiff, who was born in 1954, has been married for 37 years. She has two children and one grandchild. On leaving school she trained as a dental nurse. After her second child was born she worked for more than 20 years with her husband operating four businesses in horticulture. Her husband had been in the police force. After educating their children, the plaintiff and her husband tired of the unrelenting pressure of self-employment and wound down their businesses. The plaintiff was working as a receptionist in aged care when she applied for the job at Legibook.

193 Prior to July 2007, she had never been treated for any psychiatric injury or psychological condition, blood pressure, eczema, neck or jaw pain, tooth grinding or tinnitus and had not suffered any symptoms of such conditions. She was active, interested in physical fitness, a keen gardener, and an enthusiastic supporter of the Essendon Football Club. Her husband described her as having been bubbly, loving, caring, and comfortable in the company of friends, family and acquaintances prior to July 2007. She carried most of the duties of homemaker and parent during the years of self-employment.

194 Dr Judith Risely had been the plaintiff's general practitioner for many years. On 6 August 2007, she consulted Dr Risely following her breakdown, complaining of stomach pain, butterflies and palpations. Dr Risely had last seen the plaintiff on 21 June 2007 when she came in for a check-up. Then, her blood pressure was at the upper end of a normal range and her cholesterol was slightly raised. Otherwise, she was in good health. On 6 August 2007, she displayed anxiety symptoms and complained that she had been under a significant amount of stress at her workplace, having been bullied by a manager over a period of time. On that occasion, the plaintiff did not want to take time off work or make a Workcover claim.

195 Dr Risely advised her to see a counsellor, it being her opinion that the stress was making her unwell. She also advised that a Workcover claim was appropriate. The plaintiff told Dr Risely on 5 September 2007 that a mediation process at work had failed. Dr Risely certified her as unfit for work and has certified her as unfit for work since that time. Dr Risely referred the plaintiff, still feeling very anxious and reporting flashbacks, to Ms Perrett-Abrahams for psychological counselling. In September 2007, the plaintiff was seen by Dr Entwistle on behalf of Workcover in the context of a possible return to work. Dr Entwistle noted that the plaintiff's emotional state deteriorated and she became increasingly distressed and anxious as the interview progressed. She described symptoms of anxiety, emotional lability and sleep disturbance. Her memory and concentration were affected. Dr Entwistle diagnosed an adjustment disorder with anxiety, commenting that there was no suggestion that she suffers from any non-work related stressors and had no past or family psychiatric history. Her current emotional state and a perception that the defendant was not fully supportive of her were barriers to an immediate return to work.

196 By November 2007, the plaintiff reported to Dr Risely that she was feeling okay and a return to work was arranged. The defendant retained Keith Farfor & Associates whose employee, Ms Laurel Sengstok, developed a return to work plan.

197 However, I am satisfied that the defendant significantly mismanaged the plaintiff's return to work. Although the plaintiff believed that Mr Cowell had been dismissed, she discovered that he retained authority to sign cheques. This discovery infected her beliefs with an uncertainty about whether Mr Cowell might return. She had not been informed about the new manager. The new manager had no idea as to how the bookshop should operate and expected the plaintiff's guidance. The bookroom was in disarray; the banking had not been done since Mr Cowell had left, stock had been bought and sold without reference to invoices or use of the computer system, access to the computer was blocked by changed password, folders of reference material which the plaintiff described as her tools of work were absent. Ms Sengstok had arranged to meet the plaintiff for five minutes. She arrived late and their meeting became a confrontation over two issues. Ms Sengstok accused the plaintiff's psychologist, Ms Perrett-Abrahams, of illegal practices. She also demanded that the plaintiff read and sign an acknowledgment of an eight page workplace behaviour policy. After Ms Sengstok left, the new manager broke down in tears over problems in his personal life before excusing himself and leaving the workplace. Having been confronted with these conditions, the plaintiff found she was unable to continue with her return to work plan. The consequence was that the plaintiff departed the bookroom stressed, anxious, and upset. That day was her last day of work for Legibook and she has not worked since.

198 In January 2008, Dr Entwistle recorded the history of the plaintiff's unfortunate return to work on 22 November 2007. On his examination at that time he concluded that from a psychiatric perspective she had a current work capacity. This finding supports the views of the plaintiff's treating practitioners. It underscores the effect of the mismanagement of the opportunity for the plaintiff to return to work.

199 In March 2008, Ms Perrett-Abrahams reported to the Accident Compensation Conciliation Service that the plaintiff suffers from chronic adjustment disorder including associated depression and anxiety, arising from a maladaptive response to the ongoing stress of her workplace. No pre-existing pathology was indicated and the patient's condition was consistent with the stated cause. Ms Perrett-Abrahams considered that her condition had been exacerbated by the unsuccessful return to work and that the plaintiff had no current work capacity, although her future prognosis was positive if an appropriate return to work plan could be developed.

200 Also in March 2008, Dr Risely reported to the Accident Compensation Conciliation Service that the plaintiff was suffering from an anxiety disorder with symptoms including tearfulness, nightmares, flashbacks, palpations, nausea, and diarrhoea, preoccupation with her workplace, intrusive thoughts, and sleep disturbance. Although her condition improved with counselling, her symptoms had intensified when her return to work in November 2007 was not successful. Dr Risely believed that the plaintiff could return to her pre-injury duties if provided with a supportive workplace.

201 In August 2008, Ms Perrett-Abrahams reported that although the plaintiff had been assessed as fit to return to work, the replacement workplace consultant had not been able to develop a suitable return to work plan with the defendant during that time and the plaintiff had lost faith in her employer, believing that it did not want her to return to Legibook. In addition, Workcover declined to authorise retraining. Ms Perrett-Abrahams considered that the plaintiff's continuing stress and her condition was being exacerbated by these factors. That same month, Dr Risely recorded that the plaintiff has physical symptoms such as nausea, abdominal pains and palpations. The plaintiff was preoccupied with the issues arising from her work, had decreased concentration, bouts of tearfulness and insomnia.

202 In October 2008, the plaintiff lodged claim forms for impairment benefits and, on 30 October 2008, received a letter from Legibook that confirmed her suspicion. She was informed that on 14 April 2008, the board had determined that the permanent role of assistant was redundant, although temporary staff would be hired from time to time to assist the manager as needed. In that context, Legibook asserted that an opportunity for a return to work was allowed, but these limitations explain why a successful return to work could not be achieved. The plaintiff's employment was terminated on the basis that her position was redundant effective from 21 October 2008.

203 In November 2008, the plaintiff was examined by Professor Ivor Jones for the defendant. Professor Jones observed that the plaintiff was inordinately preoccupied with work related problems and showed pressure of talk with restlessness and tearfulness. There was a prevailing depression of affect, accompanied by significant emotional lability, which included strong feelings of resentment and anger about her perceived treatment at her place of work. Her concentration was poor and he diagnosed adjustment order with anxiety and depression. Noting the different views between Dr Entwistle and Ms Perrett-Abrahams about the plaintiff's capacity to work, Professor Jones commented that he agreed with her own doctor and her treating psychologist. He recommended that she continue under the care of her psychologist, suggesting it was unlikely that she will be successfully rehabilitated at her former place of work. Professor Jones opined that the contributing factor to the plaintiff's condition has been the chronic relationship problems with her co-worker at her place of work. There was no evidence that the injury was an aggravation or occurrence of a pre-existing injury. She did not have a current work capacity but with rehabilitative training might be able to work elsewhere. He diagnosed an adjustment disorder with depression and anxiety and found no reason for the emergence of her symptoms other than from her experiences at her workplace as she saw them.

204 In December 2008, the defendant obtained another psychiatric opinion, this time from Dr David Weissman. On examination of her mental state, Dr Weissman found the quality of her affect was labile and emotional. Although initially relaxed and smiling, she became very tearful and distressed, flat, depressed, and anxious when discussing her work related stress and the matters that had since transpired. The content of her thinking revealed moderate, mixed depressive and anxiety themes, frustration and grievances regarding her treatment in the workplace and subsequently by the insurer. She reported problems with her concentration and her memory and demonstrated a lowered self-esteem and confidence with negative depressive cognitions about herself. Dr Weissman found no obvious pre-existing or unrelated psychiatric condition or impairment. He concluded that the plaintiff was suffering from chronic adjustment disorder with anxious and depressed mood, with features of traumatisation, of moderate severity, directly due to the injury, a reference to the events of July 2007. He agreed with other assessments that she did not have a present capacity for work but he thought her psychiatric prognosis was fair. Although she had been very traumatised and distressed by her experiences and remained prone to anxiety and depression in the future, she had a number of ego strengths. She was described as being determined, thorough and possessing a desperate desire to return to the work force.

205 In 2009, the plaintiff undertook a TAFE course in business and office administration (medical). She also undertook a course to qualify as a medical receptionist but found the work experience placement of four days at Epworth Hospital and two days at Cabrini Hospital very difficult and challenging.

206 Approximately six months later, the defendant arranged for the plaintiff to be examined by yet another psychiatrist, Dr Farnbach. Dr Farnbach noted that the plaintiff had no previous psychiatric or psychological disorders or treatment, with the exception of mild obsessive compulsive disorder, which is of no importance in her life. Personality factors noted included that she has been confident in general and in her work, quiet but sociable, with good friendships, good relationships with her family, good energy and normal emotional resilience. She has been assertive. Dr Farnbach diagnosed a major depressive disorder of moderate severity and with anxiety. He considered the events at work to be a sufficient cause of her depression and found no other cause operating in her life at the time that her illness began. The plaintiff needed to continue with psychological treatment. Noting the plaintiff's difficulty with side effects from antidepressant medication, Dr Farnbach considered that her condition had not been adequately treated, recommending she should continue cognitive behaviour therapy in combination with appropriate medication. He did not think it likely that she would be indefinitely disabled to the extent of having no work capacity.

207 The plaintiff had developed other reactions to her condition. A report from the plaintiff's dentist, Dr Peter Hayes, noted that in July 2009 the plaintiff presented with symptoms of temporomandibular joint pain and dysfunction syndrome, which had not been reported in the previous 35 years of her attendance at the practice.

208 In October 2009, Associate Professor Gerschman reported to the defendant that as a result of her stress and anxiety from workplace bullying, the plaintiff had developed bruxism (teeth grinding), temporomandibular joint pain, pain behind the eyes, bilateral headaches, squelching in the right ear and severe pain on chewing and eating. Professor Gerschman concluded that the plaintiff's pre-existing, albeit asymptomatic, nocturnal bruxism was aggravated or exacerbated by a combination of mixed anxiety and depressive symptoms arising from her work related stress injury and from the SSRI and related antidepressants that she was taking for this condition. Her prognosis was poor, given that her conditions would continue while her psychiatric conditions persisted and the use of those antidepressants continued.

209 In October 2009, Ms Perrett-Abrahams provided a further assessment of the plaintiff's psychological condition. At that time she was presenting with symptoms of chronic anxiety and depression, reporting significant sleep dysfunction, constant fatigue, persuasive feelings of grief and loss over the loss of her employment and was feeling isolated and socially withdrawn. She reported an impoverished memory and poor concentration. Ms Perrett-Abrahams affirmed her earlier diagnosis of chronic adjustment disorder that included associated depression and anxiety. Psychological testing supported her diagnosis. Ms Perrett-Abrahams reported that the plaintiff was sensitive to pharmaceuticals and the use of Lexapro caused increased bruxism. Her medication was changed to Effexor, which provided better mood elevation with a reduction in jaw clamping and grinding. She was assessed as having no capacity to return to her previous employment and that her capacity for any employment had been compromised for the foreseeable future.

210 In December 2009, the defendant sought the opinion of a clinical psychologist, Mr Robert Wilks. Mr Wilks, noting that the plaintiff described herself as always having been 'a perfectionist, methodical, who liked things to be done correctly', diagnosed her condition as adjustment disorder with mixed anxiety and depressed mood. He stated that the underlying cause of that disorder is her personality, but the direct cause has been, and remains, the events at her workplace and the subsequent handling of her rehabilitation. Mr Wilks considered that the plaintiff was only partially incapacitated for work and could be fit for part time receptionist or administrative work in a supportive environment. Further, he suggested that, with appropriate treatment and rehabilitation, the plaintiff would likely recover all of her former work capacity.

211 In 2009, the plaintiff was assessed with a psychiatric impairment of 20 percent by a medical panel and was deemed to have a permanent injury that was unlikely to improve in the foreseeable future.

212 The plaintiff had been referred to a specialist musculoskeletal physiotherapist, Dr Peter Selvaratnam, for treatment of her bruxism and temporomandibular disorder which was noted as including tinnitus. Dr Selvaratnam attributed these conditions to the administration of Lexapro for her depression. He noted that she was experiencing considerable difficulty with eating and a little difficulty with speaking, laughing, and household activities.

213 In August 2010, Mr Michael Silverstein, an ear, nose and throat specialist, reported for the plaintiff's solicitors on the plaintiff's tinnitus condition. He considered the nature and the quality of the tinnitus that the plaintiff had sustained to be unusual and possibly related to an anxiety state. The plaintiff's long term prognosis was unpredictable, because the combination of her psychological and physical condition may cause the tinnitus to persist. There was also the possibility that if it got worse there would be detrimental effects in terms of her social activities and perhaps her enjoyment of life.

214 In August 2010, Dr Farnbach reassessed the plaintiff. He found the conditions leading to his diagnosis of a major depressive disorder of moderate severity and anxiety to be substantially the same and there were, in addition, physical problems associated with her anxiety and the side effects of medication. He described these ill-effects as having been quite severe, affecting her life. He observed symptoms that are typically found in post-traumatic stress disorder sufficient to satisfy the diagnostic criteria for that condition, except that the events which triggered her condition precluded that diagnosis. In August 2010, Dr Farnbach's diagnosis was major depressive disorder of moderate severity, with post-traumatic features, and chronic anxiety. He noted that this condition affects her general sense of wellbeing and her ability to enjoy her life, and her daily living, recreational and social activities. Dr Farnbach considered that the presence of the PTSD-type symptoms was sustaining her depression and making it treatment resistant and he made recommendations about appropriate psychological treatment. He affirmed his view that her present psychiatric condition was entirely a consequence of the situation and events that she experienced when working for the defendant, with no other contributing causes. Dr Farnbach considered that the plaintiff had some residual capacity to return to work on a part time basis in a low stress situation.

215 In September 2010, an audiologist, Myriam Westcott, assessed the plaintiff's bilateral tinnitus to be the result of her bruxism and jaw clenching. She remarked that the plaintiff had developed effective sound strategies to minimise her tinnitus awareness in a quiet environment and depending on the effective management of her psychological symptoms, might be able to achieve emotional acceptance of her condition.

216 In November 2010, Dr Epstein re-examined the plaintiff concluding that the plaintiff had developed a chronic adjustment disorder with anxious and depressed mood as a consequence of work harassment. He noted that her capacity for coping appears to have been significantly damaged. She also has had panic attacks and developed temporomandibular joint dysfunction as frequently occurs in people who are highly anxious. Her work capacity remains very limited as she could only work part time in a very supportive working environment at her own pace. Dr Epstein commented that the plaintiff's quality of life had diminished, affecting her work capacity, her relationships and her recreational enjoyment. Her prognosis for improvement was limited as it was then more than three years since the events occurred and she continued to be symptomatic. Dr Epstein reported again on 29 March 2011 in the same terms.

217 In April 2011, Dr Michael Jelinek, a cardiologist, expressed the opinion that the plaintiff's blood pressure had gone up under the influence of major emotional stress caused by workplace harassment, although her blood pressure was being effectively treated. In his view, workplace stress had accelerated the development of high blood pressure.

218 In April 2011, Dr Helen Sutcliffe examined the plaintiff. An occupational physician, Dr Sutcliffe concluded that the plaintiff has no current capacity for employment and that it was unlikely that she will return to any employment, taking into consideration the length and severity of her symptoms. Dr Sutcliffe suggested that the plaintiff required assistance in the form of psychiatric treatment if she continued to suffer symptoms of depression and anxiety.

219 In April 2011, Ms Perrett-Abrahams updated her psychological assessment. At this time Ms Perrett-Abrahams commented on the plaintiff's sensitivity to pharmaceuticals. Initially, the plaintiff was treated with Hypericum Forte but her mood deteriorated in 2008, when Legibook made her redundant and non-prescriptive medication was no longer effective. She was initially prescribed an antidepressant medication, Lexapro, which proved inappropriate due to considerable side effects. Her medication was changed to 150mg Effexor SR, an SSRI classification antidepressant. Despite some initial side effects, this medication proved effective in mood elevation but the plaintiff ultimately developed significant sensitivity to this medication, developing substantial bruxism which causes headaches, tinnitus, ear pain, eye pain, eating difficulties, numbness and tingling and itching to her fingers. The plaintiff was then prescribed an array of medications to deal with these other issues and it became necessary to withdraw and replace her antidepressant medication. She also continued to suffer weight increase.

220 The plaintiff was then receiving fortnightly psychological treatment in the form of cognitive behaviour therapy to address chronic insomnia, pain management, anxiety and capacity to perform particular behaviours and positively influence the course of events in life.

221 Ms Perrett-Abrahams' diagnosis remained that the plaintiff suffers from an exacerbation of chronic adjustment disorder with depression and anxiety and her prognosis was for partial restoration only. Ms Perrett-Abrahams concluded that the plaintiff's condition had been exacerbated by the circumstances of the failed return to work program and the refusal of Legibook to develop further return to work plans ending with the plaintiff's position being made redundant. In her opinion, the plaintiff was unable to work, with no capacity for work either then or into the foreseeable future.

222 In May 2011, the plaintiff was seen by yet another forensic psychiatrist on behalf of the defendant. Dr Jager diagnosed a chronic major depressive disorder in the plaintiff. Dr Jager interviewed the plaintiff for approximately 30 minutes. He had been provided with an affidavit by the plaintiff, an affidavit by Mr Somers, unidentified psychologists' reports and reports from Dr Epstein and Dr Farnbach, although he made no reference to the reports of the other psychiatrists. He expressed the opinion that constitutional factors are 'highly likely to be perpetuating the claimant's illness and causing her current presentation and that they have superseded employment as the primary cause of her depressive condition'. The author's path of reasoning to this conclusion is not evident from his report and appears to be based upon information gleaned from the affidavits provided to him. Whatever the true basis for his opinion, his report fails to disclose a transparent path of reasoning that states how 'facts' and 'assumptions' about the plaintiff relate to his opinion that constitutional factors in the plaintiff had superseded employment as the primary cause of her depressive condition.[28] Having found a psychiatrist expressing an opinion that was less favourable to the plaintiff, Dr Jager was the psychiatrist called to give oral evidence for the defendant to which I will return.

223 On 17 May 2012, Dr Paul Kornan, a psychiatrist, examined the plaintiff at the request of her solicitors. He observed anxiety and a depressive voice tone, and memory and concentration problems. There was significant subjective distress, with marked somatic problems, raised anxiety levels and depression. There was anhedonia. Her behaviour showed a woman having difficulties coping. Dr Kornan diagnosed a generalised anxiety disorder and a major depressive disorder. Her anxiety takes the pathway of somatic type contributions to bruxism, tinnitus, blood pressure issues, panic features, and skin rashes and itchiness. Dr Kornan noted the diagnoses of others, of Adjustment Disorder, but was of the view that her symptoms clearly indicate the more significant disorders. The consequence for the plaintiff was a major loss of enjoyment of lifestyle and she was, in essence, an invalid in her own home. His prognosis was not favourable as the plaintiff has developed chronic psychiatric ill-health, in which symptoms fuel further anxiety and depression. The plaintiff will remain in chronic psychiatric ill-health in the long term and is unlikely to show sustained improvement or recovery from her medication and treatments.

224 Dr Epstein also re-examined the plaintiff and reported again in May 2012. His observations and opinion were largely unchanged. Although her panic attacks appeared to have improved, they are still present as a feature of her Adjustment Disorder with anxious and depressed mood. Essentially, the plaintiff suffered a breakdown in her capacity for coping arising from the workplace harassment. Dr Epstein commented that her temporomandibular joint dysfunction was a frequent concomitant of anxiety. Her quality of life was very limited and her prognosis was poor.

225 On 4 June 2012, Professor Paul Nestel, a consultant cardiac physician, reported that, although it was unusual, it was highly likely that the plaintiff's hypertension was initiated by her work related stress. Her hypertension was adequately treated, but there would be consequences for her cardiovascular health should hypertension recur or her depression deepen or become resistant to treatment.

226 On 24 July 2012, Dr Alan Segal, a dermatologist, opined that the plaintiff had developed a psychogenic pruritis with subsequent eczematous eruption on her arms, caused by stress associated with her workplace and her psychological condition.

227 On 11 October 2012, Dr Helen Sutcliffe reported that the plaintiff's complete lack of capacity for her pre-injury employment as a result of the Adjustment Disorder would continue into the foreseeable future, she had no capacity for other employment and thus had no capacity for suitable duties. Her total incapacitation for employment would continue into the foreseeable future.

228 Ms Perrett-Abrahams also reported again, in September 2012, setting out again much of the plaintiff's history since July 2007. Her diagnosis remained unchanged as did her prognosis of only partial restoration. On the basis of her psychological tests, she confirmed that the plaintiff sustained a severe depression and a moderate to high anxiety. Ms Perrett-Abrahams was cross-examined at length about her testing of the plaintiff and the relation between her conclusions and the self-assessment of severity of symptoms by the patient that underlies such tests. However, I do not accept the cross-examiner's thesis that the severity of the plaintiff's condition was overstated by Ms Perrett-Abrahams. I am satisfied that the witness took proper account of test results. In any event, there was no inconsistency between her opinions and those of the psychiatrists, Dr Epstein and Dr Kornan, whose evidence I also accept. Broadly speaking, the medico-legal reports obtained for the defendant were not inconsistent with Ms Perrett-Abrahams' opinions. The qualification is that Ms Perrett-Abrahams expressed a particular view that the plaintiff's condition was exacerbated by a relapse when her return to work program exposed her to a workplace in disarray that was unsafe for her where she was inappropriately treated by the rehabilitation provider. Ms Perrett-Abrahams was the plaintiff's treating psychologist at this time and I accept her opinion in this respect.

229 Ms Perrett-Abrahams summarised the impact of the plaintiff's illness on her life. Firstly, she referred to the stress related physical conditions that she developed; temporomandibular joint dysfunction with bruxism and tinnitus requiring an oral nocturnal splint and specific and specialised physiotherapy, chronic insomnia, pain, anxiety, a disabling sensitivity to antidepressants, high blood pressure, and debilitating rashes and skin irritations. Many of these conditions exacerbated her stress injury condition and undermined gains made through psychological treatment. Secondly Ms Perrett-Abrahams said:

Mrs Swan is compromised in her daily activities and has decompensated to the extent that she finds it difficult to reconcile the woman she is today from the competent woman she used to be who was capable of managing and running a business, and managing her home simultaneously. Today she finds herself incapable of organising her home and finds days go by without her [being] able to achieve goals or perform household tasks. She reported that without the assistance of her husband and family, many tasks go undone. She reports spending her days applying psychological techniques to distract from her skin irritation, resting due to headaches derived from her bruxism and tinnitus. All of her symptomology's impact on her significant fatigue, which she struggles with daily. She attends the gym several times a week which assists her with socialisation and helps to address her social isolation and withdrawal.

230 On 31 January 2013, Dr Kornan reported again to the plaintiff's solicitors about the plaintiff. He confirmed his previous observations, diagnosis and prognosis, describing her present condition as of a chronic nature, and of chronic, moderate intensity to, at times, being moderately severe. The plaintiff was unable to have a meaningful pattern to her life as she continued to be anxious and depressed, with her energy and organisational abilities lost to her. Her condition remained unchanged from his prior assessment and her prognosis was poor.

231 On 11 February 2013, Dr Farnbach reported again to the defendant's solicitors. Dr Farnbach recalled that he had changed his diagnosis from major depressive disorder with anxiety, of moderate severity to major depressive disorder with anxiety and with PTSD features of moderate severity. Explaining that his diagnosis was still major depressive disorder with anxiety and with PTSD features of moderate severity, Dr Farnbach commented:

Mrs Swan's psychiatric condition has scarcely changed since I saw her one year and three years ago. The difference is that she is now apathetic, which may be a response to the antidepressant Pristiq. Her mood is always low, which she described as 'I know I feel sad' and 'I can't be bothered'. She feels sad and she wants to cry but 'I can't'. Her mood lifted briefly when her new grandchild was born. Her capacity for pleasure, including the birth of a grandchild is low. She has depression of sleep, appetite, energy, concentration and self-esteem. She is no longer irritable, because she is apathetic. She ruminates daily, which depresses her. She is anxious, with a restless and worrying mind, and somatic symptoms. She has PTSD symptoms, resulting from having been extremely anxious, and feeling helpless and trapped in the job. She has intrusive distressing recollections, in the daytime, but no nightmares. She avoids reminders of her experiences, her interests have become attenuated, she feels less connected to other people and is less empathetic, and she cannot imagine her future, although she expects to have normal longevity. She has heightened arousal symptoms.

Dr Farnbach concluded that the plaintiff would continue to be chronically depressed and to suffer and to be incapable of working unless more intensive management by a psychiatrist with specialist expertise in treating the PTSD component of her illness was able to achieve some improvement.

232 In a further report dated 25 February 2013, Dr Epstein confirmed the content of his earlier reports. He noted Dr Kornan's opinion and commented 'While I understand his reasons for making those diagnoses, nevertheless I did not consider that her symptoms met that level of seniority but was certainly in the same ballpark'. He accepted that the plaintiff's symptoms persist in part because of her continued involvement in the Workcover process but also because of the extent of the damage that was done in the workplace as far as her mental state was concerned. He concluded that on prior occasions he had been unduly optimistic and stated 'I think her current work capacity is nil and will not improve in the future. Her quality of life continues to be very limited. Her prognosis for improvement is slight. Her condition is stable'.

233 On 27 March 2013, Dr Selvaratnam reported on the issues associated with the plaintiff's stress related physical conditions. His testing measured that the plaintiff's medical condition had an impact on a range of functional activities such as speaking, taking a large bite, chewing hard food, chewing soft food, household activities, drinking, laughing, chewing resistant food, yawning, kissing, eating a hard cookie, eating meat, eating a raw carrot, eating French bread, eating nuts and eating an apple. He considers that the plaintiff was unable to work and should never be in a stressful work situation. He commented, however, that the plaintiff was a highly motivated person who attends the gym and performs the exercises prescribed. However, he anticipated that the plaintiff would experience ongoing symptoms over at least a period of 10 years.

234 An updated report from Dr Risely on 22 March 2013 noted that the plaintiff's therapy at that time was Pristiq (an antidepressant) and supportive psychotherapy provided by a psychologist. The plaintiff exercised daily and had been referred to a psychiatrist for opinion on further management. She wore an occlusive splint in her mouth and had physiotherapy for her bruxism. She was undertaking bio feedback and taking Atacand for her hypertension. She was using moisturisers and cortisone creams for her eczema. Dr Risely opined that the injury and its consequent losses had had a major impact on the plaintiff's life. She had become socially isolated and lacked confidence. She was very dependent on her family. She had gained weight. Dr Risely considered the plaintiff to be totally unfit for work and unlikely to ever work again.

235 Ms Perrett-Abrahams, in an updated report dated 23 March 2013, noted that the plaintiff had made gains in treatment which had been eroded by her burgeoning physical injuries arising from her antidepressant medication. Her adjustment disorder was described as chronic and severe and her injury had been onerous and deleterious in the extreme. If recovery is achieved at all, it would take a substantial time. The plaintiff remained compromised in most aspects of her life and is isolated, lonely and disconnected. She had no current work capacity or any capacity for work in the foreseeable future.

236 At trial, each of Drs Riseley, Perrett-Abrahams, Epstein, and Kornan were cross-examined on their reports by Legibook's counsel. The mechanism for the plaintiff's injury was that her capacity for coping was damaged, and that damage could be sustained either in a single traumatic incident or from long term exposure to patterns of much less traumatic circumstances. Dr Epstein found the plaintiff to be a hard working conscientious person who liked the job, who was pushing herself to keep going and expected she would be able to manage, perhaps thinking she was 'bullet-proof'. In his opinion, the return to work was a disaster, not a case of a new injury, or exacerbation, it was almost her worst fears, of going back into the same stressful work place, one which had reminders of the experiences she had been having before she went on leave. Dr Epstein was describing features of traumatisation.

237 There was, despite appropriate medication and treatment, no real change in the plaintiff's condition over the four years that Dr Epstein has seen her, which prompted him to state that he had been unduly optimistic in his 2102 report, particularly about the plaintiff's prospects of working again. Dr Epstein accepted that there was a possibility of improvement in the plaintiff's mental state after verdict, as a significant stressor would be relieved, but the plaintiff would continue to struggle with day to day matters. Dr Epstein rejected Dr Jager's opinion about the role of obsessional personality characteristics in the diagnosis. Dr Epstein saw no features of obsessive ritualistic behaviour in the plaintiff or any relevance of such matters in a diagnosis.

238 Dr Jager was the only medical witness called to give oral evidence for the defendant. Dr Jager identified from an affidavit in his briefing materials that the plaintiff 'is compulsive and trying to be perfect,' as the basis for the constitutional factors that he was considering when expressing his opinion. From the witness box, Dr Jager stated that constitutional factors were 'perpetuating the claimant's illness and causing her current presentation.' Dr Jager was referring to his interest in why the plaintiff had failed to recover her mental health. I did not take him to be continuing to suggest that obsessional constitutional factors predisposed the plaintiff to developing a depressive illness and were the primary cause of her illness. Dr Jager's diagnosis of a causal link between the workplace exposure and her condition causing her to cease work was consistent with the opinions of other medical assessors. His evidence clarified that he was unaware of these constitutional factors when examining the plaintiff, because his practice is not to read briefing reports until after his examination, but Dr Jager did not explain, as I followed him, why I should accept his opinion about the significance of constitutional factors as more than speculation, or an ipse dixit. I prefer the majority expert opinion that did not identify any relevant predisposing constitutional factors, or any relevant role for such factors in the cause, or persistence, of her illness, and I reject Dr Jager's opinions where they are in conflict with the opinions of other psychiatrists.

239 Before her illness, the plaintiff was an outgoing, physically and socially active person with a good, close relationship with her husband and children. She had been a happy and confident person. She thought she was 'sporty'. One of the defendant's witnesses, Mr Esnault, described the plaintiff as 'very pleasant and quite confident'.

240 The plaintiff liked working with people and had always loved books. With multitudes of students from different backgrounds frequenting Legibook, she particularly enjoyed working there.

241 The plaintiff had been a very confident and efficient person capable of juggling a number of issues at once without problem. This skill was evident not only in her employment at Legibook but in her prior life, particularly in contributing to the family business while raising her own family. Her evidence was that her enjoyment of life had significantly diminished since her illness in the following ways:

(a) She does not have any libido and personal relations with her husband were quite strained. She does not enjoy being touched. She finds herself increasingly isolated, preferring her own company. She does not enjoy the company of her own children when they visit and she has more limited contact with her friends, tending to give excuses to avoid social contact. Before her illness she moved regularly in a number of different circles of friends.

(b) Unable to concentrate, she no longer reads character fiction and cannot find the time or the will to read magazines that previously engaged her, such as Better Homes and Gardens. Gardening, previously a passion, no longer interested her.

(c) The plaintiff's husband had taken over domestic activities, including cooking.

(d) The plaintiff now struggles with sport and physical activity, struggling to get to the gym, go for a walk or a swim, although she does so as part of her treatment program. She has put on weight. Although she continues to go to football matches, as she has done for many years, she has lost her passion for the game and her regular attendance to support the Essendon Football Club is usually an outing organised by her daughter to get her out of the house. Once an enthusiastic fan of musicals, she has not gone to the theatre for a couple of years.

(e) The plaintiff often loses concentration, gets disoriented and feels very lethargic or tired all of the time. Because she has always been employed she experiences difficulty getting up every day for want of a feeling of purpose. She experiences disturbed sleep with anxious dreams. She also experiences physical pain with muscle tightness in addition to the pain and headaches associated with her bruxism and temporomandibular condition.

(f) The plaintiff's weight has increased and she feels frumpy and unfit. She experiences various side effects because of her medications including diarrhorrea, vomiting and headaches. She experienced 'washouts' when transitioning from one antidepressant to another and has struggled significantly since 2007 with the side effects of her medications. Her tinnitus is with her all the time and can get quite severe.

(g) The plaintiff gets stressed and anxious, especially when under any pressure. She gets teary and goes to pieces whenever there is anything loud or abusive around her. She gets headaches, she grinds and clenches her teeth and suffers consequent muscular tension and headaches.

(h) The plaintiff has limited activity outside of her home. Shopping trips leave her exhausted and have reduced over time. When her son was married in Jakarta she was able to attend the wedding and followed on with a short holiday in Vietnam. Her husband described her capacity to join in the activities on that trip as curtailed by her avoidance of loud noisy places and her lethargy. Her activities were quite limited.

242 I find that the plaintiff did not suffer from any pre-existing or unrelated psychiatric condition or impairment. There were no non-work related stressors affecting the plaintiff prior to July 2007 when the plaintiff sustained a psychiatric injury.

243 There was little, if any, disagreement about the plaintiff's psychiatric injury, or its cause, across the range of medical opinion from treating practitioners to the forensic professionals. She is suffering from a major depressive disorder and a generalised anxiety disorder, with features of traumatisation. Her present condition is of a chronic nature, and of chronic moderate intensity to moderate severity. The description of her illness by the professionals varies a little, but these variations are not significant.

244 I accept the addition by a number of the medical witnesses of features of post traumatic stress. Dr Riseley reported such symptoms, but Dr Farnbach in particular, concluded that while the plaintiff did not fulfil the diagnostic conditions for post traumatic stress disorder, her illness had such features and those symptoms were both sustaining her depression and relevant to her treatment. The plaintiff's PTSD features are of moderate severity.

245 Her condition initially improved with counselling, but her symptoms intensified when her return to work in November 2007 was not successful. Her reaction to various antidepressants also appears to have contributed to her present condition. The plaintiff has been certified by Dr Riseley as unfit for work continuously since 2007 and remains under the care of her psychologist Dr Perrett-Abrahams. I am satisfied that the plaintiff's prognosis is poor, if recovery is achieved at all, it will take a substantial time.

246 The plaintiff's injury has been extremely onerous and deleterious. In addition to the primary symptoms of her Adjustment Disorder/Depressive condition, continuing anxiety and depression, that have been described by the medical witnesses, the plaintiff has somatic symptoms including temporomandibular joint dysfunction with bruxism and tinnitus, chronic insomnia, pain, including migraine and headache, anxiety, a disabling sensitivity to antidepressants, high blood pressure, and debilitating rashes and skin irritations that have all required separate diagnosis, and continue to require separate ongoing management and treatment. I have already described the consequences for the plaintiff as reported by medical experts.

247 From the plaintiff's own perspective, I accept her evidence of the consequences for her life of her illness. It was supported by both her husband's evidence and the medical evidence. Legibook contended that I should be reluctant to accept this evidence for want of support from other witnesses, such as other members of the plaintiff's family, who were not called. I reject this contention.

248 I am satisfied that the plaintiff remains substantially compromised in most aspects of her life, which has been reduced to one of isolation and disconnection from her family and friends and from the world around her. The plaintiff has surrendered her personal independence, lost her confidence, and lost her capacity to take interest in and derive pleasure from the stimulus in life. This has been a substantial loss of enjoyment of life, with much pain and suffering, both mental and physical.

249 Although it appeared during the trial that there was an issue whether the plaintiff suffered pre-existing psychological problems that were a cause of her injury, the defendant did not ultimately press a submission to this effect. However, I will make the following observations. The plaintiff always bears the legal onus of establishing on the balance of probabilities that the defendant's negligence materially contributed to her illness. As I have stated above, I am satisfied that this onus has been discharged. For the defendant to successfully contend that the plaintiff's illness and her current presentation was primarily caused by 'constitutional factors', it must first discharge an evidentiary onus of proving such constitutional factors existed and would have produced similar symptoms. This submission fails at this first hurdle. In view of the findings I have already made concerning pre-existing constitutional factors, I do not consider it necessary in the circumstances to make any allowance by way of a general contingency for such constitutional factors either as the primary cause of her depressive condition or as being likely to be perpetuating her illness. I am satisfied that the plaintiff's natural character and personality made no contribution to her illness and is not a factor that warrants any reduction in the damages that are required to compensate her.

250 The plaintiff's evidence, which I accept, was that she has no capacity for work because she 'got stressed and anxious under pressure'. She could not tolerate any loud noise or abusive language and readily went to pieces or became teary. She also felt incapacitated by her bruxism, with consequent severe headaches and tinnitus, and by her eczema.

251 I am satisfied that the plaintiff's feelings that she has no work capacity are borne out by the expert assessments. The issue was complicated by the circumstances of the plaintiff's return to work program. In the early stages both the plaintiff's treating practitioners and the defendant's medical assessors considered that the plaintiff could successfully return to work. As I have found, the plaintiff's return to work was poorly organised and exacerbated her condition. There was no separate, or new, injury arising from those circumstances. So much is clear from the medical evidence.

252 Although the failure of the return to work program did not immediately dissuade medical practitioners from the view that the plaintiff might return to work in the future, those medical practitioners have now been persuaded by the unrelenting progression of her symptoms, particularly through her poor reactions to medication and the somatic depression and anxiety symptoms that she has developed. Over time, a number of medical specialists have revised their optimistic assessments that the plaintiff might return to work.

253 I accept the opinion of Dr Sutcliffe that the plaintiff no longer has a capacity to perform her former, or any other, employment and is likely to suffer a want of capacity to work into the foreseeable future. Ultimately, each of Dr Epstein, Dr Kornan, Ms Perrett-Abrahams, Dr Selvaratnam, Dr Risely, Dr Jager and Dr Farnbach came to share the view of Dr Sutcliffe that the plaintiff has no realistic capacity for work in the future.

254 The defendant submitted that I should not adopt anything less than 15% discount for vicissitudes, submitting that the proper allowance lay in the range up to 20%. The plaintiff suggested that such a discount was not warranted on the evidence. In Club Italia (Geelong) Inc v Ritchie[29] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually of the order of 15% while emphasising that each case depended on its own facts.

255 In assessing the extent to which gross economic loss is to be discounted, the court is required to take into account a range of possible future occurrences both adverse and favourable to the plaintiff, having regard to the evidence. The contingencies that are usually considered include sickness and accident, loss of, or improvement in employment prospects, or the chance of some other misfortune (or fortune) that may appear in the circumstances. Further, a long prospective period for an assessment, or where the plaintiff's future prospects are not illuminated by evidence of opportunities past and present, may warrant a larger contingency.

256 The plaintiff expressed a clear view. She did not 'believe in retirement. I think you die if you retire. That's my opinion. I think you should always work as long as you possibly can and that's one of the things that's been so upsetting to me is now that I don't have the capacity to work'. The plaintiff had worked all of her adult life including on a part time basis when bringing up her family while her husband continued to work. Although her preference has been for part time work since she and her husband disposed of their businesses, her pecuniary loss claim is assessed on this basis, assuming employment until retirement at 65. I see no reason not to accept this expectation. The plaintiff was able to find part time employment at a later stage in life and has demonstrated a capacity to undertake further study or workplace training when needed.

257 Prior to her illness, the plaintiff was generally fit and active, enjoying good health. There was no evidence of underlying medical conditions that might adversely affect her capacity to work during the next decade. The defendant submitted that the plaintiff and her husband had already made significant adjustments to their lifestyle, scaling back from operating small businesses and in a comfortable financial position the plaintiff may not have chosen to continue in employment.

258 Other than its status as the standard discount, I see no basis in this case to apply a discount rate of 15% and I see no reason to apply a greater discount. However, I am satisfied that some discount for vicissitudes should be made and I will apply a discount factor of 10%.

259 The parties agreed that subject to my findings concerning capacity to work and the appropriate discount for vicissitudes, the plaintiff's past loss of earnings totals $156,570.38. The plaintiff's future loss of earning capacity to age 65 is $151,093.34 which I discount for vicissitudes to $135,984.

260 I assess the plaintiff's pecuniary loss in the sum of $292,554.38.

261 In Willett v Victoria,[30] the Court of Appeal overturned a jury assessment of damages in a claim by the plaintiff/appellant for damages for psychiatric injury caused by workplace bullying. The court, by majority, considered the jury's award to be manifestly inadequate. The court determined that once liability has been determined, the starting point for the assessment of damages for pain and suffering and loss of enjoyment of life must be that it was common ground that the plaintiff had suffered a serious mental disturbance of which the respondent's conduct was a cause. The question to then be determined was the proper compensation for the pain and suffering and loss of enjoyment of life caused by the defendant's negligence.

262 The majority agreed with recent observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King,[31] that over the course of time society has come to place greater value on the loss of enjoyment of life and the experience of pain and suffering than it did before. Salaries too have greatly increased. The court said:

Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But in as much as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?[32]

The court noted that awards of damages have markedly increased:[33]

[O]ver the last 10-20 years, awards of damages have increased significantly; not just in personal injuries cases, but also in other areas of litigation. For example, last year [2010] a jury in this state awarded a barrister more than $600,000 in damages for defamation and that amount seems not have been regarded as unreasonable...At all events, it appears that damages awarded by juries in cases of defamation are capable of providing us with at least some guidance as to the reasonableness of the amount awarded in this case for loss of enjoyment of life and pain and suffering. And we bear in mind too that the law today is not "more jealous of a man's reputation than of his life and limb".

263 I consider that the severity of the plaintiff's illness as described in the medical evidence that I have set out above was evident when she gave evidence. I am satisfied that the impact of the plaintiff's illness upon her since 2007 and into the foreseeable future has been, and will continue to be, severe. The plaintiff's own evidence of the impact of her illness upon her is consistent with that assessment. Her medication and somatic symptoms substantially aggravate her suffering. I bear in mind the general considerations drawn from Willetts and Amaca.

264 I will award the plaintiff damages for pain and suffering and loss of enjoyment of life in the sum of $300,000.

265 I will hear counsel as to the form of the judgment and on costs.

[1] Guthrie v Spence [2009] NSWCA 369, at [75].

[2] Compare State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors [1999] HCA 3; (1999) 73 ALJR 306, at [63], [94], [139].

[3] The transcript records the year as 2005, but the context, as understood by all, was to 2003.

[4] The transcript incorrectly records 'Oh' instead of No (at 441:23).

[5] The transcript incorrectly records 'I said' instead of 'he said', Compare T179:18.

[6] 'Guidance Note. Prevention of Bullying and Violence at Work', a publication that was readily available and which would have been easily comprehended by the board.

[7] [1970] HCA 60; (1970) 125 CLR 383, 394-395.

[8] [2004] NSWCA 7 [124].

[9] See generally Czartyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, (2005) 79 ALJR 839.

[10] [2011] HCA 11, [22]

[11] [2011] HCA 11; (2011) 243 CLR 361 [22].

[12] [2005] 222 CLR 44.

[13] [2007] QCA 366.

[15] [2010] VSC 42 (3 March 2010).

[16] [2013] VSC 58 (22 February 2013).

[17] Koehler (2005) 222 CLR 44, 56-58 [33]-[35].

[19] [2007] HCA 20 [57].

[20] Hatton v Sutherland, Barber v Somerset County Council, Jones v Sandwell Metropolitan Borough Council, Bishop v Baker Refractories Ltd [2002] EWCA Civ 76, [2002] ICR 613.

[21] Ibid[2002] EWCA Civ 76; , [2002] ICR 613, 632 [43].

[23] Ibid, 635 [59]. In Barber, the Appeal succeeded because there was no duty of care engaged.

[24] [2013] VSCA 122 (22 May 2013).

[28] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [129], see also Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, cited with approval by Heydon JA in Dasreef, at [93].

[29] [2001] VSCA 180; (2001) 3 VR 447, 464 [57].

[30] [2013] VSCA 76 (12 April 2013).

[31] [2011] VSCA 447 (22 December 2011).

[32] Ibid, [177] (footnotes omitted).

[33] Ibid, [180], [182] (footnotes omitted).