Issue 2 - Was the plaintiff's employer negligent?
210As her employer, the defendant owed the plaintiff a non-delegable duty to take reasonable care to avoid exposing her to an unnecessary risk of injury in the workplace: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, at pages 312 - 313; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, at [10], citing Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, at p 25; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12].
211In the context of this case, it hardly needs stating that the scope or content of this duty required the defendant to ensure the plaintiff was not bullied, intimidated or sexually harassed in the workplace: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13]. This is especially so once the plaintiff made it known to her employer that she found such conduct repugnant and unwelcome.
212As the Civil Liability Act 2002 does not apply to workplace injuries, the question of whether the defendant was negligent in the circumstances as alleged must be determined according to well settled common law principles that require the assessment of a reasonable response to a foreseeable risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
213That determination must proceed by way of a prospective analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [126]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [65] to [69].
214In support of her claim that the defendant had breached the duty of care owed to her, the plaintiff relied upon the following allegations of negligence:
(a)Failing to provide the plaintiff with a reasonable safe place of work;
(b)Failing to take reasonable care for the plaintiff's safety;
(c)Placing the plaintiff in a position of peril in the circumstances;
(d)Subjecting the plaintiff to repeated acts of physical and verbal sexual harassment;
(e)Failing through its servants or agents to take steps to stop Warren Gelle from sexually harassing the plaintiff;
(f)Failing to prevent Warren Gelle from harassing the plaintiff;
(g)Failing to provide Warren Gelle with any, or any adequate, counselling or training in relation to workplace harassment.
215A component of the plaintiff's case is that the defendant company should be held to be vicariously liable for Mr Gelle's conduct. In contrast the defendant claims the conduct in question, if established as I have found to be the case, should be characterised as Mr Gelle's intentional acts, and in consequence it was argued that the defendant should not be found liable for those acts.
216Several things need to be said about the defendant's submissions in that regard, leading me to the conclusion that those submissions should not be accepted.
217First, the question of whether the company should be imputed to have had knowledge of Mr Gelle's conduct depends upon how Mr Gelle's position in the defendant company is to be viewed: Nationwide News Ltd v Naidu & Anor [2007] NSWCA 3767, at [41].
218In this case, it is clear and beyond dispute that Mr Gelle was the controlling mind, will and embodiment of the company, and as such, had the requisite knowledge of the offending circumstances that evolved over time. He worked in close proximity to the plaintiff in a position of authority over her and was therefore able to impose himself on her in the manner I have found: NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, at [42]. This justifies a finding that the defendant company is vicariously liable for his aberrant conduct towards the plaintiff and I therefore make that finding.
219Secondly, if I be wrong in reaching that conclusion, it is nevertheless plain that in September 2008, when the plaintiff complained to Mrs Gelle, who was another director of the company, that Mr Gelle's conduct towards the plaintiff was unwelcome. That circumstance required the defendant company, through its responsible directors, to engage itself in the task of addressing the discharge of its duty of care to the plaintiff.
220In each of the above scenarios, both when the plaintiff repeatedly rebuffed Mr Gelle's unwanted advances that comprised the first, second and fifth elements of the conduct of Mr Gelle before she took sick leave, and in the circumstances of the plaintiff's rebuffs of the sixth, seventh, eighth, ninth, tenth and eleventh elements of Mr Gelle's conduct, at each stage, a reasonable employer aware of the circumstances would have taken steps to avoid what is now known to have occurred: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [126].
221Whilst it may be argued that initially, the employer had no reasonable cause to suspect that the plaintiff may be vulnerable to developing a psychological illness as a result of Mr Gelle's behaviour, that could not reasonably be the case after September 2008, when the employer knew that the plaintiff went on sick leave for psychological reasons as a result of Mr Gelle's unwanted attentions.
222At that time, a reasonable employer in the position of the defendant, knowing there had been no physical injury in the plaintiff resulting in the need to take sick leave, nevertheless ought to have realised that the plaintiff was vulnerable to developing a psychological illness if the conduct continued. This was the very purpose of her sick leave.
223In my view, that conclusion arises from the fact that the plaintiff obtained medical support for her sick leave in the form of a certificate from her doctor, and from the specific content of the plaintiff's complaint to Mrs Gelle.
224At that time, in September 2008, a reasonable employer would have acted to protect the plaintiff from being subjected to Mr Gelle's unwanted behaviour, especially since the plaintiff told Mrs Gelle she was sick of that behaviour. Even if Mr Gelle was unable to control his behaviour in that regard, at that time, it was incumbent upon Mrs Gelle to act effectively in that regard in the discharge of the duty of care owed by the company.
225The evidence of the plaintiff and Mrs Richardson I have already cited, reveals Mrs Gelle had acknowledged that there was a need for her to act. She said she would talk to Mr Gelle about his behaviour and sort the problem. This was a recognition of the need to accede to the plaintiff's request that something be done to stop Mr Gelle from touching her in the manner she described.
226Whatever Mrs Gelle did by way of response to those circumstances is not known as she was not called as a witness. Although Mr Gelle denied that his wife had spoken to him about the behaviour in question, given my findings concerning Mr Gelle's credit as a witness, I am not prepared to accept his denial in that regard.
227After September 2008, Mr Gelle's offensive conduct continued. This was to the point that on certified medical grounds, the plaintiff was no longer able to continue to work due to what has been clearly diagnosed as psychological illness for which she sought psychological, psychiatric and other treatment. This is described more fully in the medical evidence that I have reviewed at paragraphs [157] to [184] above.
228In those circumstances I am satisfied the plaintiff's psychological illness as described in that evidence has been caused by Mr Gelle's offensive and sexually harassing behaviour, and this was also contributed to by his bullying and intimidatory behaviour, as has already been described. The plaintiff's resultant psychiatric condition was materially contributed to by the defendant's apparent inaction in response to the plaintiff's complaint.
229I find, but for that conduct on Mr Gelle's part, the plaintiff would not have incurred the psychiatric illness in question, and she would not be in the situation where she feels that her life has been ruined: Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182.
230The fact that the offending behaviour of Mr Gelle comprised the twelve elements I have analysed, and the fact that some of those elements comprise an array of occurrences within them, leads me to conclude that Mr Gelle's harassment of the plaintiff should be characterised as having been systematic in its nature: Nationwide News Ltd v Naidu & Anor [2007] NSWCA 3767, at [34].
231In my view, those problems could have been avoided by the defendant by relatively simple means. The fact of Mr Gelle's systematic harassment and bullying of the plaintiff should have been on the employer's radar, especially after September 2008.
232In my view, it is starkly apparent that there was a failure on the part of the defendant to act appropriately and to require and ensure that Mr Gelle's offensive and harassing conduct towards the plaintiff cease.
233The defendant failed to provide the plaintiff with a safe place of work, it failed to take reasonable steps to care for the plaintiff's psychological wellbeing, and it exposed the plaintiff to the peril of Mr Gelle's continuing and repeated sexual harassment, bullying and intimidation.
234The remedial steps required to avoid the plaintiff from suffering harm were quite simple and non-problematic. Mr Gelle demonstrated clear intellectual ability and acumen. He ought to have been counselled to desist from his behaviour following the plaintiff's complaints to Mrs Gelle. He had been amenable to counselling in the past when he felt compelled to seek it out.
235As the controlling will and embodiment of the defendant company, Mr Gelle ought to have reasonably foreseen from the plaintiff's firm rebuffs of his behaviour, that his conduct was likely to be detrimental to her wellbeing. This should have led to the realisation by him that it was necessary for him to desist from his unwelcomed behaviour. Furthermore once Mrs Gelle had been made aware of the problem, it ought to have been reasonably foreseeable to her that any continuation of Mr Gelle's aberrant behaviour was likely to be psychologically damaging to the plaintiff.
236The defendant company ought to have arranged for Mr Gelle to receive appropriate remedial counselling from a skilled professional person in order to help him to realise that his behaviour was wrong, inappropriate, and should cease.
237At the very least, a facilitated workplace conciliation or a mediation should have been convened between Mr Gelle, the plaintiff and Mrs Gelle, with proper support made available to the plaintiff. This was not done.
238Before the events in question Mr Gelle had already been the subject of psychological assessment and treatment for his aberrant behaviour of a sexual nature. This was in the form of sessions with a psychologist, Ms Carney, whose report of 1 May 2007 was in evidence: Exhibit "J". It can therefore be safely assumed that he had ready professional access to Ms Carney and it would have been a relatively simple matter to seek such advice and assistance once the plaintiff's concerns had arisen.
239Mrs Gelle must have been aware of Mr Gelle's previous need for Ms Carney's assistance as she had been paying the bills with regard to those matters: T221.14 to T221.26. Although that evidence referred to Mrs Gelle having paid his legal bills, I infer from the circumstances that this included the medico-legal expense of engaging Ms Carney to assist Mr Gelle with his legal problems.
240I infer from those circumstances that Ms Carney's door would have been kept open for Mr Gelle to make appointments for her to see and for her to assist Mr Gelle with his behavioural problems. He had strong reasons to seek out her assistance in that regard because at the time of the events that are the subject of this litigation, Mr Gelle was still on a current bond to be of good behaviour. This was no doubt a contributing factor to his vigorous defence of the criminal charges that were brought against him by the police in connection with these events.
241In my view, the failure of the defendant to effect by reasonable and available means a cessation on Mr Gelle's behaviour, was inexcusable.
242For the reasons I have outlined, I find that those circumstances were reasonably avoidable had the defendant fulfilled its duty to take reasonable care for the wellbeing of the plaintiff in the workplace. It negligently failed to do so, and that failure relevantly caused the plaintiff to suffer recognised psychiatric illness.