Wearne v State of Victoria [2017] VSC 25

1 The plaintiff, Ms Gaylene Wearne, was employed by the defendant's Department of Human Services ('the Department') at their office in High Street, Preston, in Victoria, as a case manager responsible for assisting in youth welfare within the criminal justice system. She claims damages for pain and suffering and pecuniary loss from the defendant for a psychiatric injury sustained in the course of her employment between approximately February 2007 and 7 November 2008 ('the claim period').

2 The plaintiff alleged that her exposure to bullying and harassment on the part of a supervisor, Ms Robyn Skerry, exacerbated her pre-existing chronic adjustment disorder with mixed anxiety and depression. Further or alternatively, she was unnecessarily exposed to psychiatric harm in her workplace through negligent supervision during the claim period by her manager and senior managers, Ms Robyn Skerry, Ms Eva West and Ms Jasmine Thompson who knew of her pre-existing psychological fragility and its cause, and of her susceptibility to suffer psychiatric harm.

3 The plaintiff ceased working for the Department on 7 November 2008, then aged 54, when she suffered a breakdown. She is presently aged 62 and has not undertaken any paid employment since leaving the Department.

4 The plaintiff alleged that from at least 4 March 2005 the defendant knew or ought to have known that she was vulnerable to psychiatric injury. On that date she reported she had suffered stress from toxic circumstances between employees of the Department at the defendant's Sunshine office. The defendant conceded that it was, at all relevant times since the plaintiff's transfer from the Department's Sunshine office in March or April of 2005 to the Preston office, on notice that she was at risk of psychiatric injury.

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

(a) Was there conduct on the part of Ms Skerry that constituted bullying, humiliation and/or harassment of the plaintiff ('Ms Skerry's conduct')?

(b) What was the scope and content of the duty of care owed by the defendant to avoid exposing the plaintiff in the circumstances of this case to an unnecessary risk of injury? If Ms Skerry's conduct did not amount to 'bullying', was there interpersonal conflict between Ms Skerry and the plaintiff of which the defendant, through its employees and agents, was or ought to have been aware, and if so, did that give rise to a reasonably foreseeable risk of the plaintiff suffering psychiatric injury?

(c) Was there conduct on the part of the defendant that was in breach of the defendant's duty of care in that the defendant failed to take reasonable care for the safety of the plaintiff in her employment ('conduct in breach')?

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

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

(f) Did the plaintiff suffer pre-existing psychological problems that are, or were likely to be, a cause of her injury, and if so, to what extent was there exacerbation of a pre-existing condition? What was the prospect that the plaintiff may have sustained her condition and disabilities through non-compensable causes?

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

(h) What is the plaintiff's current capacity to work?

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

6 In expressing my evidentiary findings, both as to the background matters and what occurred during the claim period, I have relied firstly on a significant body of contemporaneous material ranging from the plaintiff's GP's consultation notes, to emails, notes of meetings, internal assessments and reports to higher management, and incident and claim forms. It has also been necessary to evaluate perceptions, feelings and interpersonal relationships, the evidence of which came from the witnesses who generally displayed an understandable lack of clear recollection of events that had occurred over eight years ago. In the narrative of my findings, I have referred to matters going to credit, but some general observations can conveniently be made at this stage.

7 While, as will be set out in further detail below, I did not wholly accept the plaintiff's recollection of several key events, I accept that the plaintiff has a significant depressive illness that was apparent in her affect during the course of her evidence. The plaintiff was doing her best to recollect events that happened a long time ago and were likely to have negatively impacted on her memory. There was evidence that the plaintiff had experienced difficulties with her memory for some time. For example, Ms Skerry recorded that the plaintiff was having problems with her memory in supervision meetings in 2008.

8 Generally I accepted the plaintiff's account of what occurred between herself and Ms Skerry, particularly in terms of its impact upon her. On occasion, however, the plaintiff exaggerated aspects of Ms Skerry's conduct. The plaintiff, for a multitude of reasons that are valid, perceived that Ms Skerry was treating her unkindly, unfairly and was bullying her. It was from this perspective that the plaintiff viewed and reacted to a number of otherwise commonplace or trivial interoffice and interpersonal conflicts.

9 On other occasions, the plaintiff downplayed the significance of other stressful events in her life. Examples of this were her personal health concerns during 2008 and family stressors including the death of her ex-husband. Further, the psychological impact of events that had culminated in the plaintiff leaving the Department's Sunshine office do not appear to have been fully resolved and she was not able to effectively draw a line under those events and start afresh at the Preston office. I think it unlikely that the plaintiff was in a well frame of mind generally during the claim period. She focussed all of her difficulties on what she perceived to be various injustices suffered during the course of her employment with the defendant in 2007-2008. As I will set out below, the plaintiff's perception of this was only partly justified.

10 I accept that the plaintiff struggled to adjust to changes in work practices and that there were forceful stressors in her personal life. To some extent the plaintiff was resistant to well-intentioned interventions from other colleagues such as Ms West and Ms Boulos, but I evaluated her attitude in this respect in the light of the pre-existing stress reaction to the Sunshine office incident, of which the defendant was well aware.

11 Ms Skerry did not concede that any of her conduct towards the plaintiff was inappropriate. She was an unimpressive witness who was clearly defensive. I did not find her evidence to be persuasive and in particular I reject her evidence that she tried to be considerate of the plaintiff's fragile psychological state. Ultimately, although she admitted to belatedly recognising that the plaintiff needed to be treated with 'kid gloves', she did not do so. I am satisfied that she was informed of that need by her superiors well in advance of that time. Ms Skerry was prone to frustration when she would become intemperate.

12 Further, Ms Skerry claimed that a note of a meeting about a significant issue that precipitated the plaintiff's ultimate breakdown was made contemporaneously with that meeting. As I later explain, I am satisfied that the note was a reconstruction made about five months after the event to cast Ms Skerry's participation in the events that led to the plaintiff's breakdown in a better light.

13 Ms West gave considered responses and was generally reliable when evaluated against contemporaneous documents and the evidence of others. She readily conceded what she could not recall or did not know. I accept Ms West as an honest, truthful and reliable witness.

14 Ms Boulos is a registered psychologist who has worked in the field of worker's compensation and injury management since 2003. When she worked for the Department as a team leader in the injury management team in the North Western Region, from June 2006 to August 2008, she was a provisional psychologist. She obtained her registration in Victoria in 2009.

15 For reasons that are outlined in further detail below I found aspects of Ms Boulos' evidence problematic. While I am satisfied that she did not set out to mislead the court, there were inconsistencies between her contemporaneous descriptions of events in emails, and her recall in court of events during the claim period. As a psychologist, Ms Boulos ought to have had a greater perception of the plaintiff's condition than was at times evident. Her evidence appeared self-serving in explaining her involvement with the plaintiff and I formed the impression that a primary function of the Work Health Unit was to manage the Department's exposure to injury claims. Whether Ms Boulos was motivated by insight into the plaintiff's condition or insight into the risks faced by the Department, in her role in the plaintiff's issues she seemed strangely detached.

16 Jasmine Thompson and Paul McDonald were notable absentees from the witness box in this trial. Jasmine Thompson, the senior manager for the North and Western Regions was the Department's key decision maker. The plaintiff accepted that the defendant's solicitors had made thorough, but ultimately unsuccessful, efforts to locate Ms Thompson who left the Department's employ some years ago and moved to New Zealand. I do not draw any inference against the defendant for its failure to call evidence from Ms Thompson. However, contemporaneous documents and the evidence of others provided the basis for evaluation of what she knew and did in connection with the plaintiff's employment by the Department.

17 Paul McDonald, the regional manager of the Department's Northern Region at the relevant time, was another upper management participant in these events who was available to give evidence, still working in senior management for the defendant. Ms Thompson reported to Mr McDonald. His appearance in the witness box was foreshadowed by the defendant in opening but he did not give evidence. I infer that his relevant knowledge and instructions are sufficiently indicated by the documents and that, had he given evidence, he would not have altered, in the defendant's favour, the position stated in these documents.

Employment with the Department from 1992-2005 (Maribyrnong and Sunshine)

18 In August 1992, the plaintiff was first employed by the Victorian Public Service as a youth worker in the Department's Maribyrnong office. In 1994, she transferred to the Department's Sunshine office. She was a case manager, responsible for assisting young people within the criminal justice system and involved in preparing reports for use in court, supervising compliance with court orders, and attending court on behalf of the Department. Then, the majority of the plaintiff's time was spent out of the office, meeting with clients and attending court.

19 On 7 March 2005, the plaintiff reported an incident of work-related stress that had occurred on 4 March 2005, which resulted in a successful WorkCover claim. The plaintiff was mostly off work, with medical certificates for work related stress and anxiety, from 7 March 2005 until her transfer to the Preston office approximately one month later. The Sunshine office incident, appropriately, was not explored in evidence in any detail.

20 On 24 March 2005, the plaintiff attended a meeting where the defendant developed a documented action plan for an early intervention strategy for occupational stress, using an external injury management consultant, Ms Leta Chen. The plan included strategies for concurrent internal (e.g. organisational health) and external (e.g. employee assistance program) supports to assist the plaintiff. Two specific return-to-work strategies were identified for the plaintiff - either a project role at the Department's head office or a move to the Preston office in a similar youth worker role. It was the latter that transpired.

21 What was significant was that as a result of the Sunshine office incident the plaintiff remained anxious about any ongoing contact with a number of staff from her former workplace, experienced ongoing stress arising from those events, and that the defendant knew of her anxiety and its cause.

22 In April 2005, the plaintiff commenced at the Department's Preston office in a youth worker role under the supervision of team leader Ms Leslie Garten. The Preston office serviced Melbourne, Heidelberg and Broadmeadows Magistrates' Courts but dealt with youths living within what the Department identified as the Northern Region.

23 The defendant put in place a number of support processes for the plaintiff. She received a reduced case load. She continued, throughout 2005 and into 2006, to consult Ms Chen for ongoing counselling and support. Later, possibly around the time Ms Chen ceased to be involved, the Department's internal Work Health Unit became involved.

24 Generally team leaders monitored the wellbeing of staff, however the Work Health Unit was available to step in should there be a need for more intensive support. Its role included supporting workers experiencing issues that were impacting upon their ability to be at work or to return to work following a prolonged absence. Ms Nancy Abdelnour (nee Boulos) was the defendant's employee within that unit who principally dealt with the plaintiff. Ms Boulos knew that the plaintiff had been involved with the Work Health Unit prior to her commencement with the Department in 2006 but could not recall receiving any background or handover briefing. I will return to Ms Boulos' involvement in more detail below.

25 The plaintiff initially transitioned well into her role at the Preston office, receiving favourable performance development and recognition feedback from her acting team leader, Mr Ray Reiffel, in July 2005. However, she continued to experience anxiety. Although the precise timing remained unclear, the plaintiff was appointed to the role of acting team leader for approximately six months shortly after her transfer to Preston. The plaintiff recalled feeling 'stressed [about the team leader role] ... I'd been offered to continue for another six months and I said no thank you, I'd rather just work with the clients than go through supervising staff and that sort of thing'.

26 Personal stressors and ongoing concerns regarding her experiences at the Sunshine office continued to affect her from mid to late 2005. On 5 September 2005 she saw her GP, Dr Fred Ng, who noted that she had been feeling 'down and anxious for some months'. At that time she was first prescribed Zoloft, on a dose of 50mg per day. Dr Ng on 10 October 2005 recorded the plaintiff's stress arising from the terminal illness of her ex-husband and her son's divorce. On 23 November 2005, the plaintiff stated to Ms Chen:

I am very happy at [the Preston] office and well supported, however, there are many ongoing issues in relation to the merge of the North and West region and I find myself emotionally fragile and suffering anxiety. I identified that I need assistance in trying to move on from these issues as it continues to impact on my current situation.

On 5 December 2005, Dr Ng recorded that the plaintiff was feeling stressed and anxious from work and seeing a counsellor (Ms Chen). Her dose of Zoloft was increased to 100mg daily.

27 Around the time that the plaintiff moved to the Preston office, the nature of the work done by youth justice case workers within the Department was changing. Some of the plaintiff's difficulties in the transition to Preston were due to the different expectations being placed on her. The youth worker role was evolving into an office-based case-management role with less work than before undertaken outside the office. That work (e.g. weekly face to face meetings with clients) was increasingly outsourced to external non-Government entities. The new focus for the Department's case workers was on information management and report writing.

28 With the role change, the Department introduced new systems and procedures. Client information was now recorded on a new digital database called 'CRIS', with the expectation that all client files would be comprehensive and completely computerised. The information entered into CRIS was regularly audited by team leaders, and became a tool for team leaders to measure whether performance standards were being met. A key document that the plaintiff was expected to compile for each of her clients was a client assessment plan (CAP). The CAP, once finalised and uploaded onto CRIS, could not be amended by small changes without updating the entire document. The same limitation applied to other documents that were loaded into CRIS, including court reports. Accordingly, the working procedure was that the youth worker would draft CAPs and court reports in advance of the relevant deadline, and they would be reviewed and settled by the team leader and signed off on in final form before upload to CRIS.

29 The plaintiff agreed that from the very early days of its introduction she had difficulties adjusting to the new manner of reporting on CRIS. She acknowledged that she struggled with the Department's 'new ways' generally in her time under Ms Garten's supervision in 2006, which pre-dated the claim period and her involvement with Ms Skerry. These modernising changes to the youth worker role did not appeal to the plaintiff, who considered moving out of juvenile justice work altogether as a result.

30 Further, several witnesses identified different practices between the Department's Sunshine and Preston offices in terms of expectations for report content and standards. Ms Amelia Van Lint, the plaintiff's senior manager in 2005-2006, and Ms Janine Vains, another case worker who had also transferred from Sunshine to Preston described the difference between practice at the two offices to be that the general expectations and reporting standards at Preston were higher.

31 Contact with Western Unit (Sunshine) staff continued to be anxiety provoking for the plaintiff in the first half of 2006. Her team leader, Ms Garten, and more senior manager, Ms Van Lint, were both aware of these ongoing issues. On 28 February 2006, Ms Garten wrote to Ms Van Lint that ongoing management and support was required for 'work health issues arising for Gaye, in the context of interactions/visits/contact [with] western JJ staff'. Ms Van Lint recalled a combination of meetings, phone calls and discussion about support strategies for the plaintiff between the plaintiff and some or all of Ms Garten, Ms Chen, and the Work Health Unit.

32 The plaintiff continued to believe, and the Department acknowledged, that she was suffering from post-traumatic stress following the events precipitating her exit from the Sunshine office. On 6 March 2006, the plaintiff attended a meeting with Ms Garten and Ms Chen to discuss strategies that would assist her in coping with the increased presence of Western Unit staff in the Preston office, in anticipation of the upcoming amalgamation of the two offices.

33 In early March 2006, the plaintiff applied for long service leave later that year, informing Ms Van Lint that it was needed to deal with stress. She took sick leave from 13−27 March 2006. Dr Ng recorded on 15 March that she was feeling anxious and overwhelmed from work.

34 On 3 May 2006, the plaintiff reported feeling unsupported by her managers regarding her ongoing participation in the 'PCCC project' that involved the organisation of police-supported blue light discos, an initiative that she had been involved in while at the Sunshine office. An email she sent to Ms Van Lint on that date made clear to the Department her ongoing difficulties:

I have previously made you aware that I have experienced an extremely difficult time in the past and that I am attempting to overcome these issues by finding other sources of confidence/self-esteem building in my employment. It is my belief that this has not been taken into account when making your decision not to support me in this project.

Ms Van Lint recalled that while it was not usually the case that a Sunshine based project would remain with a worker following a move to Preston, the plaintiff's ongoing involvement in the PCCC project was ultimately supported pending further review.

35 On 11 May 2006 the plaintiff lodged a DINMA (the Department's template form for reporting incidents of 'Disease/Injury/Near Miss/Accident'). She reported 'stress' arising out of 'workplace issues' in respect of an incident on 10 April 2006. The incident was not clearly identified in the DINMA.

36 Around this time, the youth justice worker role was being reclassified. As part of a work value review process, workers with long-term experience at the plaintiff's level at that time ('CPW-2' level) were effectively invited to apply for the higher 'CPW-3' classification that brought an increase in responsibility and pay. A dispute developed about this process. The plaintiff contended that Mr Reiffel had misinformed her about the process and had encouraged her not to apply, which she didn't. She was devastated to learn that other workers, particularly former colleagues from the Western Unit who were at or around her level of experience, were promoted through this process.

37 The Work Value Review process exacerbated the issues from her previous experiences at the Western Unit, and caused the plaintiff significant stress in May 2006. Both Ms Garten and Ms Van Lint recalled that the issue 'seemed to escalate after [the plaintiff] found out that staff at the Western Unit had been successful' in their applications.

38 On 26 May 2006, the plaintiff met with Ms Van Lint, Ms Garten, Ms Piera Calandro (OH&S representative) and Ms Camille Munro (from the Work Health Unit) regarding the plaintiff's reported stress, and issues for and strategies to assist the plaintiff were discussed. The issues identified at this time were the plaintiff's long hours of work (although she was not carrying a full case load of clients), the standard of court reports, a perceived lack of encouragement from management including regarding the continuance of her involvement with the PCCC project, the Work Value Review process, and a range of supervision issues with her team leader at that time, Ms Garten. The plaintiff acknowledged that differences of opinion regarding the content of reports had arisen between herself and Ms Garten on a number of occasions. On 16 June 2006 Dr Ng again recorded in consultation notes that the plaintiff was experiencing work related stress.

39 Regarding the Work Value Review process, the plaintiff ultimately lodged a formal grievance with the Department's Regional Manager, Mr Paul McDonald. In that review, Mr Reiffel denied telling the plaintiff that she ought not apply for the promotion to CPW-3, but in evidence he did not have a clear recall of their discussions. On 29 June 2006, Mr McDonald informed the plaintiff that he had made no finding of wrongdoing regarding Mr Reiffel's actions, but that she could submit an application for re-classification, although increased pay on any subsequent promotion would not be backdated.

40 The plaintiff's working relationship with Ms Garten was deteriorating in mid-2006. On 7 July 2006, Ms Garten lodged a DINMA reporting the negative impact on her own stress levels and emotional well-being following a confrontation with the plaintiff during a feedback discussion. Ms Van Lint, who was Ms Garten's manager, recalled that 'obviously it took a lot of energy supporting and supervising Gaye, and ... [Ms Garten] was starting to feel stressed by it'.

41 In July 2006, Ms Garten reported in the plaintiff's performance development and recognition review:

It is noted that Gaye has a strong commitment to being engaged in direct service delivery and working with young people and she has persevered and increasingly struggled through a particularly challenging/difficult period over the past 12 months in terms of adjusting to her roles, both as acting team leader and JJ worker at Northern JJU, addressing professional development issues, staffing changes and OH&S issues.

Gaye will continue to be offered assistance and support to address OH&S issues, performance concerns and professional development through supervision, training opportunities and subsequent PDRP planning and continued consultation with WorkHealth.

This passage appropriately encapsulated the Department's knowledge in mid-2006 of the difficulties the plaintiff was experiencing in performing the role that was expected of her at Preston, her commitment to being a successful employee and the Department's recognition of her continuing need for assistance and support.

42 The plaintiff took long service leave from 28 July to 22 September 2006.

43 In late September 2006, Ms Jasmine Thompson, to whom Ms Van Lint reported, approved a secondment for the plaintiff to the Refugee Minor Program at the Department's expense on her return from leave. This secondment was arranged by Ms Boulos, supported by Ms Van Lint. Ms Boulos recalled that the secondment was intended to expand the plaintiff's options for alternative roles within the Department, given her difficulties in the youth justice team at that point in time. Ms Boulos characterised it as 'part intervention but part to sort of open more doors for Gaye'; [as] 'she needed to have a break away from that unit.'

44 The secondment was a positive experience for the plaintiff and a success for the Work Health Unit, but as it was about to end the plaintiff became quite anxious about returning to the Preston office. She unsuccessfully applied for a permanent position with the Refugee Minor Program. On Ms Boulos' recommendation, the plaintiff's secondment was extended by one month and she remained with the program, and absent from the Preston office, for the remainder of 2006.

45 In January and February 2007, the plaintiff was unwilling to return to the Preston Youth Justice Unit. Ms Van Lint communicated the fact of the plaintiff's fragile state of mind and her anxiety about the prospect of return to the Preston office to the Department's more senior management, first in an email of 10 January 2007 to Ms Thompson:

While Gaye is very clear that she does not want to return to the JJ program, we have made it clear to her that at the end of this period, her options at this time would be to return or to leave the program. Gaye has been strongly encouraged to actively apply for a range of other positions both internal and external to DHS and Nancy Boulos will work with Gaye over the coming weeks to monitor her progress.

On 15 February 2007, Ms Thompson reported up the line to Mr McDonald:

She doesn't want to come back and is not in a good frame of mind but has no other options available to her at the moment. I gather she has some job applications in but nothing resolved yet ...

Bottom line though is that if she returns, she will need to take up her allocated position quite quickly but in the interests of trying to avoid an immediate work cover claim, I think it is important that I explore options to allow for a short transition period to allow her to get back into JJ and her substantive position ...

I think it quite likely that she will make a work cover claim if she has to remain in JJ in the medium or long term ...

46 No other suitable option was identified. When, on 20 February 2007 the plaintiff's secondment ended, she returned to the Preston office. During the period that the plaintiff was on secondment, a department re-structure amalgamated the North and Western Youth Justice Units.

47 Before I turn to events from 20 February 2007-7 November 2008, the claim period, I record my finding that I am satisfied that the Department knew and accepted, from the beginning of the claim period, that the plaintiff was not in a good frame of mind, that she experienced anxiety and stress that had resulted in periods of leave, including taking an extended period away from the Youth Justice Unit in an attempt to recover her health by a period of long service leave followed by the secondment. The Department understood the plaintiff's vulnerability to a psychiatric injury. It knew that continuing to work in the Youth Justice Unit exposed the plaintiff to the source of her original stress and anxiety, namely interaction with workers from the Western Youth Justice Unit. It knew of the other issues that had contributed to the plaintiff's vulnerability to stress and anxiety, namely;

(a) her need to acquire new and different skills to adapt to new systems and procedures;

(b) the additional stress experienced by the plaintiff through attempting the 'acting team leader' role;

(c) the unsatisfactory outcome from her perspective in the grievance dispute with Mr Reiffel; and

(d) her feelings of not having been supported over the PCCC project.

The Department also understood that the risk was that a return to the Youth Justice Unit was 'quite likely' to affect the plaintiff's health prospectively leading to an immediate WorkCover claim or a likely WorkCover claim in the medium term. The risk was identified as sufficiently significant to require particular attention from management.

48 Neither Ms Thompson, who could not be located in New Zealand, nor Mr McDonald, whose absence from the witness box was unexplained, added any explanation of this correspondence between them. Because the plaintiff's team leader and her manager reported to Ms Thompson and through her to Mr McDonald, I am satisfied that the Department well understood the basis for Ms Thompson's concerns. That basis emerges from the background events thus far set out. The critical question became whether the subsequent response of the Department in the management of the plaintiff was adequate in the context of the identified magnitude of the risk.

49 On her return to Preston, the Department placed the plaintiff with a new team leader, Ms Robyn Skerry who was supervised in turn by Ms Eva West. Ms West reported to Jasmine Thompson.

50 From the outset, Ms Thompson informed Ms West of both the personal health problems and performance issues that could impact upon the plaintiff's return to work. Ms West understood that the plaintiff had preferred to remain at the Refugee Minor Program and was generally reluctant to return to the Youth Justice Unit in the Preston office. Ms Skerry was also aware from the outset of the plaintiff's issues in relation to the Sunshine office 'debacle', but was not briefed specifically about those events. The plaintiff told Ms Skerry directly that the Sunshine office events caused her anxiety resulting in post-traumatic stress disorder. Ms Skerry was loosely aware of other issues the plaintiff had previously experienced: 'I think it was around supervision, around report writing. That type of thing. Entries on CRIS'.

51 The plaintiff was not immediately allocated a full case management role, but transitioned back in the first few weeks through program work and case support tasks. Ms West assisted the plaintiff in her transition, with ongoing consultation with the Work Health Unit, a reduced case-load and the offer of additional training in CRIS.

52 Despite her initial misgivings, the plaintiff felt positive overall in February-April 2007 about returning to the Preston office. By the end of March 2007, the plaintiff was asking Ms Skerry to give her more work and was offering to assist other workers if needed. On 22 March 2007, the plaintiff applied directly to Mr McDonald, seeking reclassification from CPW-2 to CPW-3. In early April 2007, the plaintiff expressed her appreciation for the support of Ms West and Ms Skerry, stating in an email to them both:

I just wanted to let you know how much I appreciate your support. I think I might just make it ... with your continued, caring and supportive ways/style of management which means so much to me. I am beginning to gain a little confidence (have a way to go) but knowing I don't have to be afraid of feeling afraid means the world to me.

53 Ms Skerry considered that in this period the plaintiff was feeling fairly positive. Yet an important message being communicated was the plaintiff's continuing vulnerability to psychological injury and the significance of supportive and caring styles of management of her. This communication did not convey to the Department that the risk had ameliorated. Rather, it reinforced the need for continued vigilance by the Department to ensure a proper approach to management of the plaintiff's workplace environment.

54 On 20 April 2007, the plaintiff informed her supervisors of the possibility that someone might complain about a breach of client privacy. She had accessed the confidential file of another worker's client, the boyfriend of one of her foster children. After that worker complained, the plaintiff's self-report was passed up the line of management. The plaintiff was subsequently found to have engaged in misconduct, characterised by Ms West as 'a result of poor judgment and lack of thought rather than a deliberate breach for personal or other gain.' Ms Skerry, who was not involved in dealing with the complaint, considered the plaintiff's conduct to be a serious breach of confidentiality. The plaintiff was counselled about the Department's privacy policy and applicable code of conduct. I pause to note that the conduct of the plaintiff's superiors in respect of the breach of client privacy was appropriate. That this incident occurred at all was consequent on the plaintiff's conduct.

55 Around this time the plaintiff was struggling generally with the new procedures within the Department, particularly using CRIS, achieving consistency in report writing standards, and recognising an increased emphasis on privacy and confidentiality. Ms West recalled that:

Gaylene expressed on numerous occasions that - um, the way things had changed were ridiculous for the Department. Um, the policies, the expectations - um, particularly because for 15 years um, there hadn't been any feedback to Gaylene according to what Gaylene had been saying to the contrary.

56 Ms Skerry's recollection of the period from February-July 2007 was:

Gaye was struggling still with the - I mean the CRIS system, the thing about the roles, as we changed the case management role it's like about 75/80 per cent administration. We're sitting behind computers all day. We're on the phone all day. We're not out and about with clients. So you know, entering data onto the CRIS system, every time you make a phone call you need to put that - you need to enter that information into the CRIS system and that's what she was struggling with. So it was a huge part of her role.

It was a huge part of her work. The report writing, she was struggling with the report writing. It was a time management, getting reports in on time, the quality of reports, that type of thing. Case management strategies, that type of thing, you know, if I was reading a report, you know, there was certainly holes in the case-manager's strategies in regard to addressing young people's offending.

57 I am satisfied that the Department understood that the plaintiff, an employee of long standing who had not been offered employment on the basis of expertise in the new administrative systems, suffered stress and anxiety about the new demands being placed on her as an employee. This understanding imposed particular demands on the Department in providing the plaintiff with a workplace that was not injurious to her health and wellbeing.

58 The plaintiff described her initial impression of Ms Skerry's supervision: 'She seemed nice on the outside'; that 'she would be smiling as she criticised me ... it started off small and little bits and got more and more'. I am satisfied that in the first two or three months of Ms Skerry's supervision the plaintiff, who had not wanted to return to Preston, tried hard to succeed and discharge her duties as required.

59 In around May 2007, the plaintiff first asked Ms West if she could be moved to the supervision of another team leader. Initially, the issue behind this request seemed to be supervision of report writing. The process for Ms Skerry to review and sign off on the plaintiff's reports had escalated into a source of conflict between them. The plaintiff recalled '... it was awful, and I was starting to question myself as well. I was starting to think that maybe I'm not a good worker'. She approached Ms West and reported to her 'that it was stressing me, that I found it very stressful ... I told her everything. I told her I felt that I was being bullied and harassed for every little comma and any little bit of work that I did. It was never acceptable'. Although the allegation of bullying had been raised, the significant information from this complaint for Ms West was that the plaintiff was suffering ongoing stress and anxiety. Ms West had been informed by Ms Thompson of both personal health problems and performance issues that could impact upon the plaintiff's psychological health. The plaintiff's reported concerns sounded a clear warning bell for Ms West.

60 Ms West accepted that by early 2008 the plaintiff's request to change team leader needed to be addressed. Despite recognition of this need, Ms West responded that a team change would be disruptive to others, and that she considered it best to work these things out 'in-house'. Ms Thompson, in at least 'a couple' of discussions with Ms West about the possibility of moving the plaintiff to the supervision of another team leader, confirmed Ms West's decision. The plaintiff remained on Ms Skerry's team. I am satisfied that the decision to move the plaintiff to a different team required approval by Ms Thompson, and consultation with the Work Health Unit.

61 There was no evidence that the Work Health Unit, Ms Thompson, or Ms West considered the implications for the plaintiff's mental state and her psychological health when rejecting a team change as disruptive to others. The plaintiff then perceived that she was not being supported by management despite express statements from them that they were trying to help her. This perception was not immediately articulated by the plaintiff. I am not persuaded that the relevant risks of which the Department was aware were being properly balanced. The implications for the plaintiff's psychological health from her more senior managers apparent support of Ms Skerry's approach to the plaintiff's difficulties, particularly with the new work procedures, were negative. The plaintiff was feeling bullied. Whether she was in fact being bullied is a matter that I will come to in due course. Irrespective of that analysis, I am satisfied that the Department was not giving proper care to the management of the plaintiff's work environment in the context of its knowledge of the risk factors then operating.

62 Ms West permitted an 'open door' arrangement, whereby the plaintiff was able to come to her office and speak to her directly if she was experiencing difficulties. By about August 2007, the plaintiff began to use this opportunity, on average, once or twice a week. At this stage the plaintiff's complaints tended to be around the frequency of Ms Skerry's feedback and the level of editing of her written work, rather than the manner in which feedback was given. Ms West considered that Ms Skerry's feedback to the plaintiff was warranted and reasonable. Additional training for the plaintiff was suggested, but it never eventuated for a number of reasons, including the plaintiff's reluctance to participate. I am satisfied that Ms West was, sub-consciously, reinforcing the plaintiff's perceptions that Ms Skerry had her full support, that she needed to do better, and that she was not capable of meeting the required standard.

63 In mid-2007 the plaintiff experienced a number of difficulties in her personal life. On 30 May 2007, the plaintiff reported to Dr Ng feeling depressed following the worsening condition of her ex-husband with a terminal illness and another close relative being hospitalised in a coma following a brain haemorrhage. At this time she was taking 150mg of Zoloft daily. The plaintiff took sick leave from 15-20 June 2007 and reported to Dr Ng that her employer was supportive of that leave, which was confirmed by both Ms West and Ms Skerry.

64 In June 2007, Ms Skerry completed the plaintiff's annual performance development and recognition report, indicating that after returning to a reduced caseload, following consultation with the Work Health Unit, the plaintiff's workload had gradually increased. Ms Skerry referred to the plaintiff's difficulty adapting to CRIS and her recent personal issues, but was positive overall:

Gaye's confidence using and transcribing information onto CRIS continues to cause some anxiety, and often requires the assistance of co-workers. Gaye has declined to participate in further CRIS training during this review period, however she has indicated she will consider one to one CRIS training, as offered by NYJU management, in the next development plan.

...

According to Gaye it was difficult for her to return to work with any confidence following her period of secondment. Gaye stated she was anxious regarding her view of management perceptions as a result of unresolved issues/concerns between herself and management prior to this current review period. However, Gaye reflected that her return to work plan, was smooth and comfortable, due to the influence of work health plan, her reduced workload and support by current YJ management.

At around the same time, Ms West's equivalent review of Ms Skerry was also generally positive, but noted that 'managing difficult staff issues/performance management and the broader systems issues continues to be an area of development for Robyn'.

65 These reports flow up the line to senior management and I am satisfied that Ms Thompson and Mr McDonald were informed of, and aware that, the plaintiff was now continuing in the Youth Justice Unit into the medium term, being the period they identified as likely to lead to a WorkCover claim, and that the plaintiff was continuing to experience stress and anxiety. Ms Skerry was not performing well in managing difficult staff issues and staff performance management. Ms Thompson and Mr McDonald ought to have been aware that their decision not to transfer the plaintiff to another team was not assisting the proper management of the plaintiff's workplace wellbeing, which they had earlier identified as carrying significant risk of causing her injury.

66 As at 18 July 2007, the plaintiff was still on a return to work program and was not performing the full range of duties of her CPW-2 position. Personal issues also pressed on her. In August 2007, she was admitted to hospital for gall stone surgery. In November 2007, her ex-husband passed away in the US. Dr Ng noted that the plaintiff continued to take 150mg of Zoloft daily.

67 The plaintiff's Work Value Review seeking promotion to a higher CPW-3 position remained ongoing. In late 2007, it was still being considered. Ms Thompson recommended that the final decision be deferred for a further six months from 12 November 2007 on the basis that the plaintiff worked at the CPW-3 level for that period. A decision would then be made as to whether she would be permanently promoted. The plaintiff was initially proactive in taking up the higher level of responsibilities, emailing both Ms West and another team leader, Ms Alicia Zineder in December 2007, requesting that she be considered to case manage more difficult clients and offering to take on additional clients that required a senior staff member.

68 The decision not to promote the plaintiff permanently at that time is not to be criticised on its merits. Again, it is significant that there is clear evidence of the plaintiff's willingness to attempt to make the job work for her, while the delay and the management of communications with the plaintiff about its progress were likely contributing to her anxiety levels.

69 In December 2007, Ms Skerry completed a performance review of the plaintiff. Ms Skerry described their relationship as 'probably not as good as it was at the beginning of 2007 ... There had been some issues with, you know receiving feedback so I - I think we started off a lot better than probably we finished in 2007.' Ms Skerry recalled perceiving that her feedback was not being received by the plaintiff in the spirit in which it was given.

70 On 31 January 2008, the plaintiff requested feedback from Ms Thompson and Ms Skerry as to her performance acting in the CPW-3 role. On 7 February 2008, Ms Skerry's supervision notes reported that the plaintiff was:

... going better/emotionally stronger ... time management not an issue, KPIs and reports all on time ... keeping up with CRIS ... hasn't booked into CRIS training as Gaye has been unable to locate any refresher courses.

71 In February 2008, Ms Thompson met with Ms Skerry and the plaintiff. The plaintiff recalled that Ms Thompson had said that she was happy with the work she was doing. In connection with the extended CPW-3 trial period, the plaintiff understood that Ms Skerry was to provide her with a portfolio, being a special project that she would coordinate. Ms Skerry did not allocate a particular portfolio to the plaintiff at that time. As a result of this, the plaintiff felt unsupported in the trial period, effectively blocked from achieving a successful promotion. She recalled that she 'felt like giving up .... I was hitting my head against a brick wall because I was desperately trying to work at a higher level, but how could I if I didn't have the tools to work at a higher level so to speak'. Ms West agreed that Ms Skerry had not given the plaintiff any portfolio or project work, explaining:

I wouldn't necessarily say that Robyn had failed. I think that there was discussions between Robyn and Jasmine around the reasons why additional work on top of what Gaye had, and was experiencing some concerns about the performance that at that time it didn't appear to be the best time to be giving her projects.

72 I am satisfied that the Department was continuing to lose sight of the objective of managing the plaintiff's work environment to avoid a WorkCover claim. As the Department lost focus, the plaintiff continued to suffer significant levels of work induced stress and anxiety.

73 On 25 February 2008 the plaintiff reported to Ms Skerry that she had been experiencing panic attacks, which Ms Skerry accepted as genuine. Ms Skerry told Ms West that she had observed the plaintiff's panic attacks. Ms West informed Ms Thompson that the plaintiff 'was reporting panic attacks as a result of the stress that she was under relating to trying to achieve the level 3 upgrade'. As I have already stated, I accept that there were more complex reasons for the plaintiff's stress and anxiety that Ms West and Ms Thompson ought to have appreciated. Ms West recalled observing the plaintiff having what she thought might be a panic attack only once, an event later in 2008 which I will come to, but was aware from Ms Skerry that there had been other occasions.

74 In early 2008, Ms West recalled that, although the plaintiff was by this stage managing cases appropriate for a senior case worker, there were still time and information management concerns. Ms West described the plaintiff's management of her duties as varied. There were periods when the plaintiff appeared confident and competent, and was managing or felt that she was managing the workload reasonably well. At other times, she was extremely frustrated with feedback from Ms Skerry. Ms West also characterised the two women's relationship as variable, capable on a personal level of being quite positive but anxiety-ridden at times of supervision.

75 Ms Skerry described the plaintiff as anxious, and resistant to further training to reflect the changes in her role. Ms Skerry considered that the plaintiff was struggling to meet the standard of a CPW-3 worker. Her memory was poor and time management continued to be an issue. These concerns would be identified by a professional as symptomatic of significant stress and anxiety, but I was not persuaded that Ms Skerry was particularly insightful about the plaintiff's psychological condition. To the extent that she was, she was much less insightful than Ms West.

76 In late March or early April 2008, Ms West met on at least two occasions with Ms Skerry and the plaintiff. At the first meeting, the plaintiff walked out because she felt she was 'not being heard' by Ms Skerry. The plaintiff recalled that on that occasion,

... we were just discussing in general her criticism of me, and negative attitude towards the work that I was doing and she just kept denying that that was the case, that she was critical of me and that she wasn't supporting me.

77 Ms West discussed the friction between the plaintiff and Ms Skerry in a supervision meeting with Ms Skerry on 14 March 2008, and Ms Skerry agreed to consider some strategies that they discussed.

78 Ms Skerry confirmed that, certainly in the early part of 2008, the plaintiff had not hesitated in speaking up when she disagreed with an aspect of her supervision. The plaintiff clashed with her in relation to Department standards which Ms Skerry sought to reinforce and which she described the plaintiff as resisting, creating 'considerable friction'. Ms West did not consider that Ms Skerry's criticism of the plaintiff's work was any greater than it was with other staff members.

79 The plaintiff was away on leave from 28 March to 7 April 2008.

80 The second meeting between the plaintiff, Ms Boulos, Ms West and Ms Skerry was held on 16 April 2008. Ms West described the purpose of this meeting as follows:

The meeting was called because Gaylene was experiencing, or had talked about experiencing frustration and felt that Robyn was nit-picking. Was getting very anxious about the feedback that Robyn was giving her ... To try and mediate some of those perceptions, I guess, and have some better understanding of each other's perspective.

81 Ms West reported that Ms Thompson had made the decision that it was best to leave Ms Skerry and the plaintiff in the same team 'to try to work it out as professionals', and that Ms Boulos agreed to that course. The plaintiff reported being seen as an 'agitator' by supervisors, but stated that she had agreed to continue to try and operate in the same team. Ms Boulos' recollection was that the decision to continue to try and work through the plaintiff's grievances without implementing a change in the team structure was made by upper management, but that the plaintiff would have demonstrated a willingness to 'try and keep going' at that point. Ms Skerry agreed that by this meeting she was aware the plaintiff had been requesting to move to another team, but that the plaintiff had accepted the decision that had been made to continue without a change.

82 Ms Boulos described her goal at this time to achieve 'a supportive return to work [for the plaintiff]' but could not recall whether the plaintiff renewed her request to change to a different team during this meeting. Ms West in written notes from this meeting described the plaintiff as feeling 'much better, more relaxed, more heard and understood; feels Robyn's attitude is better'.

83 The plaintiff asked Ms West to be re-allocated to another team in numerous further meetings about Ms Skerry's supervision. Ms West agreed that the plaintiff's complaints regarding Ms Skerry's management did not stop. From around this time the plaintiff recalled that there were '... lots of little meetings with Robyn and Eva, occasionally Jasmine, but it was always just trying to work out how we can work out the issues that I was laying out. But nothing ever changed'. Ms Boulos recalled various informal meetings and catch-ups in addition to the formal meetings that she attended with the plaintiff and the plaintiff's supervisors, but could not be more specific. Ms West recalled that the plaintiff was teary in meetings, although this was not always the case. She specifically recalled two occasions in late 2008 when the plaintiff was teary.

84 I am satisfied that the Department's representatives who knew of and understood the plaintiff's vulnerability to psychiatric injury, particularly Ms Thompson, Ms West and Ms Boulos, had by this point lost sight of the goal of creating a workplace environment that was safe for the plaintiff's mental state and minimised the risk of psychiatric injury and a consequent work care claim.

85 Ms West stated that from as early as May 2008 she knew the Department was 'walking on eggshells' in relation to the plaintiff's mental health. In one meeting between the plaintiff and Ms West, in 'maybe mid 2008' the plaintiff recalled that Ms West had said to her 'I know what you're going through, I've been bullied by Robyn myself'. This evidence was not challenged when the plaintiff was cross-examined, however Ms West denied making such a statement in her evidence in chief. On the probabilities, I prefer Ms West's evidence on this matter. She may have been trying to express empathy for the plaintiff, but was misinterpreted.

86 At a supervision meeting between Ms West and Ms Skerry on 7 May 2008, the latter expressed feeling unsupported in her supervision of the plaintiff given the plaintiff's tendency to bypass her and report concerns directly to Ms West. Ms West agreed that this supervision meeting was not the only one in which Ms Skerry had expressed her views strongly about dissatisfaction with Ms West's supervision of her and that she had felt on more than one occasion that what Ms Skerry was saying to her was inappropriate. While I accept that Ms West was in a difficult situation given her supervisory responsibilities towards both women, she did not appear to seek assistance from her superiors on the issue. I infer that she failed to provide clear guidance to both the plaintiff and Ms Skerry particularly as the relationship between them deteriorated from mid-2008. That failure contributed to the anxiety and stress experienced by both women in the latter stages of 2008. It also contributed to the manner in which Ms Skerry supervised an increasingly stressed and vulnerable plaintiff in the latter stages before her breakdown.

87 On 12 May 2008, Ms Thompson submitted to higher management a final assessment of the plaintiff's application for a permanent CPW-3 role, recommending that it be declined and, significantly, noting that the plaintiff continued to suffer from PTSD and ongoing issues with management. This assessment came less than a month after Ms Thompson's decision that the plaintiff not be transferred to another team but left to work out her differences with Ms Skerry as professionals. It is difficult to reconcile Ms Thompson's decision not to change the team structure with her awareness of the current state of the plaintiff's health in a manner that is favourable to the Department.

88 The plaintiff continued to struggle against the stressors that were affecting her psychological state. She had no option but to put on a brave face, and that is what she did. In that context, unsurprisingly, Ms West recalled a 'good period' of approximately 4-6 weeks after that meeting, and that there was no further complaint from the plaintiff about Ms Skerry until about July 2008. Ms Skerry reported that on 12 May 2008, the plaintiff, who remained on a reduced case load, said at a supervision meeting that she believed her work was good, she was doing a good job and was feeling less pressured.

89 Ms Skerry's supervision notes of 4 June 2008 recorded that the plaintiff was 'travelling OK with a low case load of seven clients'. In the next supervision meeting between Ms West and Ms Skerry on 11 June 2008 Ms Skerry recorded 'discussion regarding Gaye's progress ... noticed that Gaye has been docile lately - not going to stress anymore' (quoting the plaintiff's words).

90 The plaintiff took leave between 23 June to 22 July 2008. Ms Skerry's supervision notes from 23 June 2008 recorded 'make time to talk to Nancy [Boulos] when the plaintiff returns from leave ... concerning Gaye's options ... 1:1 Counselling - regarding stress and a third week of leave has been applied for via Eva West'.

91 On 8 August 2008, the plaintiff attended a joint supervision meeting with Ms West and Ms Skerry in which she reported 'it has been a horrific year, biding my time until I can leave here ... thinking about working 4 days a week. Emotionally exhausted from YJ [Youth Justice]'. The plaintiff was now overseeing 16 clients, a high case load. Ms Skerry recalled that the plaintiff experienced difficulties with the increased case load, her time management was an issue, the plaintiff was having problems with her memory and was rushing her report writing. Ms Skerry stated that in response the plaintiff was offered training, a mentor, supervision, and Ms West's open door policy.

92 On 14 August 2008 the plaintiff was formally notified that her application for a permanent upgrade to a CPW-3 role had been rejected.

93 I pause the narrative at this point to return to mid-2008 or thereabouts to detail a number of interactions between Ms Skerry and the plaintiff, that occurred at times that have not been more precisely identified, that the plaintiff submits are examples of Ms Skerry's bullying or harassing conduct. Given that the plaintiff and other witnesses were recalling events which occurred almost 10 years ago, it was unsurprising that they were unable to be more specific about the exact chronology of these incidents. Ms Skerry often had no recollection of the particular incident. I have no reason not to accept the plaintiff's evidence in most cases. It is not each incident considered alone that is significant. Rather, Ms Skerry's demeanour and her attitude as revealed by her conduct on most of these occasions when taken collectively contributes to my satisfaction that the Department was not ensuring that the workplace was appropriately safe for a person whom they knew to be fragile and vulnerable to psychological distress.

94 The first of these incidents, which probably occurred in about August 2008, was an occasion when the plaintiff was attending the Broadmeadows Magistrates' Court for one of her clients. In discussions with the client's lawyer, she concluded that her client appeared to be of low IQ and would benefit from a disability client service plan assessment. Spontaneously, she requested that the magistrate consider asking for such a plan to be done. The plaintiff described Ms Skerry's reaction upon hearing of her having taken the initiative in this way as being 'absolutely furious', saying that the plaintiff should have first called to discuss the issue with her and should never have done such a thing. In evidence, Mr Reiffel, when asked about the plaintiff's account of this incident, confirmed that the plaintiff had acted appropriately for a worker with her level of experience. I will refer to this as the intellectually disabled client incident.

95 Secondly, on another occasion, the plaintiff had been present at court when a young person, who was not her client, was placed on a youth supervision order. I will refer to this as the probation order incident. After the court adjourned, the plaintiff approached the young person and his mother who appeared distressed and offered general advice and information. Ms Skerry objected to her conduct. When the plaintiff returned to the office she recalled:

Robyn just out in front of everybody, she just yelled at me that I have no right to be giving young people information like that. That I have to call the right team and have to tell the team that there was a young person just been in court and that a team member would call them in due course and that I should never do such a thing ...

96 Ms Skerry could not specifically recall this incident other than to say that she would not have yelled at the plaintiff. Mr Reiffel agreed, when the plaintiff's conduct was put to him for comment, that the conduct described was what would be expected of workers in the court advice role. Ms Skerry also agreed generally that for someone with Ms Wearne's experience, the course of action described would have been appropriate.

97 Thirdly, the plaintiff described an incident involving a whiteboard on which staff were expected to record their whereabouts and movements in and out of the office. I will refer to this as the whiteboard incident. Although Ms Skerry chastised her for forgetting to put her name on the board on an occasion, with a demeanour that was 'annoyed, frustrated ... it was not sort of quietly in my ear, hey don't forget to mark yourself. You know it wasn't nice, it was angry', the plaintiff later observed Ms Skerry forgetting to record her own movements, compounding her feeling that she was being treated unfairly. Ms Skerry could not recall this incident.

98 Fourthly, the plaintiff also claimed that Ms Skerry isolated and excluded her by failing to share information with her in about 2008. One such occasion occurred when Ms Skerry failed to inform her of a change in her role from acting to permanent team leader. Ms Skerry's evidence was that it would not have been her role to inform team members of this promotion. The Department had a confidential system regarding recruitment processes given the fact that there were others internally who had applied unsuccessfully and the need for a mandatory grievance period to pass. The responsibility for announcements regarding this role change properly sat with the manager of the office.

99 The plaintiff also recalled Ms Skerry becoming a grandmother for the first time, an event which she perceived had been deliberately shared with others in the office but not herself. Ms Skerry denied that there was any intention to exclude the plaintiff from the staff discussion about this event. She recalled that the conversation occurred in the middle of the open plan office area when another worker raised it and others came and joined the conversation. I accept Ms Skerry's explanation of her alleged failure to inform the plaintiff in each case and dismiss this complaint from further consideration.

100 Fifthly, and more significantly, throughout 2008 Ms Skerry's feedback regarding the plaintiff's report writing continued to be an escalating source of friction between them. These complaints were not illustrated by production of the actual reports in question and cannot be readily evaluated. It is difficult to assess whether the plaintiff's ability as a report writer was being justly criticised. Again, I have confined myself to assessing the reported demeanour and reactions of Ms Skerry in the context of the Department's need to appropriately manage a psychologically fragile employee.

101 The plaintiff referred to corrections to one report in particular that she raised with Ms West sometime in 2008. None of the witnesses were able to be more specific about the timing of this. The plaintiff had taken a paragraph from a report written by another worker that had been previously reviewed and approved by Ms Skerry and copied the words into one of her own reports. She said she did so because the particular paragraph was appropriate to the circumstances of her client and the language used by the other worker had clearly been approved by Ms Skerry. I will refer to this as the plagiarised report incident.

102 Ms Skerry made extensive corrections to the paragraph, notwithstanding that the words were identical to the report she had already approved. The plaintiff concluded that 'my report writing isn't as bad as Robyn tries to make it out to be and that Robyn was picking on me, that I was being bullied ... I just didn't want to deal with her anymore ... what could I do to change things?' The plaintiff described feeling 'physically ill from the stress'. Ms Skerry could not recall this incident. Ms West recalled raising this issue with Ms Skerry who provided an explanation for the corrections. It must follow that the plaintiff raised the incident with Ms West at the time.

103 The plaintiff also gave, as a specific example, a disagreement about the use of a comma. She recalled that Ms Skerry had made a correction to one of her draft reports, to insert a comma after the word 'and' in the middle of a sentence. I will refer to this as the comma incident. The plaintiff recalled: 'I just said to her "Oh, actually Robyn that's not good English. You don't put a comma after "and".' Well she got really annoyed with me and insisted, it had to go there ... she absolutely insisted ...'. The comma incident was not put to Ms Skerry in cross-examination, but Ms West recalled the plaintiff raising it with her.

104 Regarding the substantive content of her reports, the plaintiff said that Ms Skerry 'just didn't want to listen to my recommendations [regarding client management] ... I was always wrong ... even though I had been working with the young person for many, many months, sometimes years'. The plaintiff gave an example, where one of her clients was doing quite well and complying with fortnightly reporting as was appropriate for someone considered a low risk client, but Ms Skerry insisted that he come in weekly and receive a formal warning because he remained unemployed, which the plaintiff considered was a harsher response than was warranted in the circumstances. By contrast, in respect of another of her clients, who the plaintiff and the previous case worker had considered was due for a formal warning given poor compliance with the Department's monitoring programs, the plaintiff recalled being instructed by Ms Skerry to visit the client twice a week even though she lacked the time to do this, due to client workload. Ms Skerry could not recall giving these instructions. I will refer to these as the inconsistent instructions incidents.

105 The plaintiff described these successive incidents as 'just whittling away at my confidence ... I felt picked on ... slowly but surely I [was losing] confidence in the littlest things, in the big things'. I accept the plaintiff's evidence of her reaction to these incidents that I consider were mostly inappropriate management responses when the Department knew that it was dealing with a psychologically fragile employee. As I will in due course explain, I am not satisfied that Ms Skerry was bullying the plaintiff. However, I am satisfied that I should infer in all the circumstances that Ms Skerry, and in particular her supervisors Ms West and Ms Thompson, knew, or ought to have known, of some, if not all, of these small incidents and that the cumulative effect of them was to increase the stress and anxiety being experienced by the plaintiff in a way that was unnecessary.

106 In September 2008, Ms Boulos was preparing to leave the Department for other employment. On 3 September 2008, Ms Boulos sent a 'hand-over' or briefing email to her manager in the Work Health Unit and her Human Resources manager. This email was copied to Ms Thompson, Ms West and Ms Skerry. I accept Ms Boulos' summary as evidence of the Department's knowledge that the probable WorkCover claim predicted by Ms Thompson at the start of the claim period now appeared more likely because the plaintiff's vulnerability was now described as extreme. The email stated:

Hi Jean/Nicole,

I have been assisting YJ program on and off with some issues regarding staff-member Gaye Wearn[e], for approx 2 years now. Gaye's issues have been predominantly around her capacity to manage her workload and performance and her general mental health. Gaye continues to exhibit some behaviours of concern which I think Robyn (who is directly supervising Gaye) and Eva and Jasmine will need some advise and assistance with (sic).

Past interventions have included:

1. Facilitating 6 month secondment opportunity with Refugee Minor Program (out of YJ cost centre) to give Gaye a break from YJ and the opportunity to enhance her experience in another program area.
2. Vocational AX with Konekt with the offer of some additional Voc counselling which Gaye felt she did not need.
3. Regular contact with myself to check in on how she is coping and managing, especially in past 6 mo where she has struggled with accepting constructive feedback from her Supervisor/Management regarding her work performance and general attitude/behaviour.

The concern I have with Gaye is that she is extremely vulnerable to becoming long term incapacitated for work should she hit a "brick wall", and given her personality style, she is also someone who struggles with feedback - as she associates this with causing increase in her stress.

Happy to discuss further, but I'm sure Robyn can fill you in on the rest of the information.

107 Several features of this email are particularly significant. Firstly, Ms Boulos suggests that the reader can obtain further information from Ms Skerry and that, in my view, displayed a particularly limited understanding by Ms Boulos of the nature of the plaintiff's problems at the Youth Justice Unit. It is probable that the plaintiff sensed that she had little more support from the Work Health Unit than she received from management as all gave the appearance, at least, of supporting Ms Skerry and not offering her an independent avenue for complaint, support, or assistance.

108 Secondly, Ms Boulos' warning that the plaintiff was vulnerable to long term incapacitation is directed to management, not the plaintiff or anyone preferring the interests of the plaintiff to those of the Department. Ms Boulos confirmed that this email essentially constituted her handover notes to those who would be 'looking after the [plaintiff's] case' in future. She did not consider it appropriate to copy the communication to the plaintiff. Ms Boulos confirmed that her reference to the risk of 'long term incapacitation' referred to a potential breakdown in the plaintiff's mental health:

COUNSEL: [Reading from email] That, "there was a risk of her extreme vulnerability to a long term incapacitation"? --- Yes.

A breakdown, in other words? --- Yes. So certainly from my experience I was concerned that, you know, continuation of Gaye feeling like this and feeling like she's not having, I guess, better days than worse days, or being - having difficulty managing. But it would culminate to her ceasing to work and that's a real concern because often when people do go off work they have real difficulties with coming back to work.

...

You agree that you've sent a fairly strong message there? -- I have. I was giving a clear update to those who needed to know where I felt things were at and the risks and concerns that I had.

109 Thirdly, it is implicit in Ms Boulos' email, and she was then a trainee psychologist, that a breakdown was not an inevitable consequence.

110 Finally, Ms Boulos was identifying, for the information of her superiors, that the supervision of the plaintiff by Ms Skerry, Ms West, and Ms Thompson was problematic.

111 The evidence did not reveal any response from the persons to whom it was directed, being Ms Boulos' superiors, notwithstanding the clear warnings that it communicated. The defendant's case at trial did not respond to this identification of, and warning about, the risk to the plaintiff's psychiatric health through evidence from the persons to whom the email was primarily directed, although it was copied to Ms Skerry and Ms West and put to them by the cross-examiner. The absence from the witness box of Ms Boulos' manager Jean Cromie and her Human Resources manager Nicole Misurelli was unexplained and the inference that they took no action on the email when received is more readily drawn from their unexplained absence, notwithstanding that the plaintiff made no submission for such an inference.

112 Ms Skerry admitted that by the time she saw this email she was aware that there was a real risk of a mental breakdown for the plaintiff, and that she had a responsibility, from at least this point in time, to handle her with 'kid gloves'. As will become apparent, she failed to do so. I am satisfied that Ms Skerry was aware of that risk from a much earlier time than was apparent from this response, at least the time of her supervision meetings with Ms West in early 2008, but probably from mid-2007 when she became aware that the plaintiff wanted to change teams. She ought to have been made aware of it in February 2007, because I am satisfied that Mr McDonald, Ms Thompson and Ms West were aware of the risk from that time and that awareness carried a responsibility to ensure that the plaintiff's team leader was informed of the risk and the need to implement appropriate arrangements. Moreover, the plaintiff gave clear feedback and her supervisors were not left guessing about her psychological state even if the reasons for it were less clear.

113 Ms Skerry's supervision notes from 16 September 2008 recorded that the plaintiff was still considering her options, struggling with keeping up with the amount of daily client work, didn't know how else she could be supported in her job and didn't wish to undertake counselling or further training. Several further incidents after Ms Boulos' 3 September email caused conflict that drew an inappropriate response from Ms Skerry and elevated the stress and anxiety experienced by the plaintiff.

114 On 17 October 2008, the plaintiff inquired about using a service called 'Kids Undercover' to provide temporary caravan accommodation for one of her juvenile clients who was at risk of becoming homeless. The plaintiff emailed Ms Skerry about this option and received what she perceived to be a very negative response asking numerous questions which she described as leaving her 'just devastated'. When the plaintiff went to speak to Ms Skerry as requested, Ms Skerry was 'incensed ... so upset with me that I hadn't consulted with her first ... raising her voice'. I will refer to this as the caravan incident.

115 Ms Skerry did not accept that there was anything inappropriate about her response in the circumstances. She explained that arranging accommodation for a homeless client under 16 years of age was a Child Protection issue requiring external referrals, rather than something that the Department could deal with directly. She required further information, hence the queries in response. Mr Reiffel, when hypothetically posited with these events, expressed his view that given the difficulties in securing accommodation for clients novel approaches were sometimes appropriate, however expected that such arrangements would be discussed with a team leader prior to sending an email requesting authorisation. Supervision notes record that later that day the plaintiff informed Ms Skerry that she was too exhausted to discuss personal issues.

116 Accepting that Ms Skerry was right about the proper protocols, the treatment she gave the plaintiff was not, to use her own term, a 'kid gloves' approach. Her inquiries constituted aggressive interrogatories and her demeanour suggested mounting frustration with having to manage the plaintiff. Yet again, rather than a response that might calm and support the plaintiff, Ms Skerry's response in this situation served to increase the plaintiff's stress and anxiety.

117 The following week, from 20 to 24 October 2008, Ms Skerry was absent from work on recreation leave. On 24 October, the plaintiff consulted her GP and saw Dr Moussa who recorded a complaint of stress at work again, noting the history of the same issue with Dr Ng going back 3 years prior and that the plaintiff's team leader was the main problem. She was prescribed 200mg of Zoloft daily.

118 There was a further event, the exact timing of which remained unclear other than that it occurred not long before the plaintiff ceased work, in which the plaintiff came into Ms West's office, accompanied by Ms Vains, in a very distressed state following a confrontation with Ms Skerry. I will refer to this as the hyperventilating incident. Ms West described the occasion, but was unable to recall how long this occasion had occurred before the plaintiff finished work:

So that was an occasion when both Gaylene and Janine came into my office, and Gaylene was clearly very distressed and at one point had, I wasn't sure if it was panic attack or hyperventilating, and became quite concerned for her health. I wasn't sure what was happening for her. But it was at that point that it was clear that the variables in positive to negative interactions and communication between her and Robyn was at the point where this is actually not able to continue.

119 On 27 October 2008, the plaintiff sought from Dr Ng a letter relating to her anxiety condition in order to reduce her working days as Ms West had advised that a medical certificate was needed. Dr Ng recorded in some detail her history of increased work anxiety and wrote a letter to the Department that stated: 'Mrs Gaylene Wearne is suffering from anxiety and is being treated for this. It would be best if her duties and hours at work can be reviewed with the view of reducing her stressors.' Ms West recalled seeing this document and confirmed that it was in the context of potentially reducing the plaintiff's hours of work. It is significant that Ms West was reacting proactively to the plaintiff's deteriorating condition but it would prove to be too little, too late.

120 The following day, 28 October 2008, was the last day on which both the plaintiff and Ms Skerry were at work. On that day, Ms Skerry confronted the plaintiff after she became concerned that the plaintiff had breached client confidentiality in relation to two brothers, both of whom were Preston youth justice clients. The plaintiff had contacted the client of another worker who was the brother of her client. The other worker had raised this with her team leader, Richard Bowers, who in turn informed Ms Skerry. Ms Skerry described the other worker's complaint that she felt the plaintiff was undermining her by contacting her client directly and giving her advice as to how to manage her client. Ms Skerry understood that the plaintiff had accessed the other client's information on CRIS and had either already, or was planning to imminently, contact the other client by phone. I will refer to this as the two brothers incident.

121 The timing of this incident was disputed but I am persuaded that it occurred on 28 October 2008. The plaintiff, by reference to her diary suggested that this incident occurred on 5 November, and directly precipitated her appearance in high distress in Ms West's office, and her final departure from work days later. Ms West did not recall linking the incident to the plaintiff's presentation in her office in a state of significant distress in her last days of work. Plainly, according to documented leave records, Ms Skerry was not at work on 5 November. In this recollection, the plaintiff is mistaken. In final submissions, the plaintiff suggested that the incident was likely to have occurred on 27 or 28 October. It was not noted by Dr Ng in his notes of their consultation at 6:40 pm on 27 October. Ms Skerry was stressed by the confrontation and took leave from 29 October.

122 Further, the plaintiff gave a relatively contemporaneous written account of this incident dated 23 December 2008 to John Byrne, the Department's Human Resources manager, who took an interest in the plaintiff's issues after her breakdown when an allegation of bullying was made on the plaintiff's behalf by a union industrial officer. At that time she stated:

Chastising me in front of colleagues ... an example of this occurred during the week on 27th to 30th October, 2008, when Robyn overheard a conversation between another team leader and his staff member. Robyn came to my desk and in an angry attitude/voice, chastised me for a perceived wrongdoing, in a loud voice and in front of colleagues, leaving me feeling very upset and humiliated.

123 I reject Ms Skerry's assertion that there was a meeting about this incident on 16 October 2008, when she made a contemporaneous note. Ms West gave no evidence of this alleged meeting. I will come to the issue of the contemporaneity of the note, which I also reject, in due course.

124 Ms Skerry's recollection of the incident when giving evidence was:

COUNSEL: And what did you do in response to the information that Mr Bowers gave to you? --- Mr Bowers had told me that she had made some initial contact with Gemma's client, and she had accessed the information on CRIS. She had actually accessed the other client's not her client's information on CRIS, and I think she had contacted the client by phone. I'm not sure if she contacted by phone or in person, but she would make contact with the client and that it was her intention to contact the client again. So when Richard told me that I went and spoke to Gaye and said, "Please don't contact that client again".

And where did that conversation with Ms Wearne occur? --- At her desk.

And what was the timeframe between your conversation with Mr Bowers and your conversation with Ms Wearne? --- It was immediately. Immediately Mr Bowers told me I went straight to Gaye, because he had said that Gaye had indicated it was her intention to contact the client again a second time.

And what was your tone? --- It was heightened, but it was just a normal tone. But I sort of said, "Gaye did you do this? You need to stop, you can't do that".

125 Both Mr Reiffel and Ms West accepted that the steps taken by the plaintiff to secure all relevant consents for communication among the brothers and the two case workers were examples of best practice (she had spoken to each client separately and obtained their consent in advance). Ms West also recalled that Ms Skerry had acknowledged that she 'may have been stern' in her dealing with the plaintiff on this occasion, but that this was because she was trying to prevent the plaintiff from contacting the client again. Ms West agreed that it would have been inappropriate for Ms Skerry to raise a serious and sensitive matter such as this in a loud voice in the open plan office. Mr Reiffel similarly agreed that it was not appropriate to deliver strong criticisms of a worker in the open plan area.

126 I do not accept Ms Skerry's evidence about her demeanour, which I accept induced in the plaintiff feelings of upset and humiliation as she described. This incident confirmed Ms Skerry's mounting frustration with having to manage the plaintiff's issues. Once again, rather than a response that might calm and support the plaintiff, Ms Skerry's response in this situation served to increase the plaintiff's stress and anxiety.

127 From 29 October to 7 November 2008, Ms Skerry was absent from work on sick leave. She explained that after the two brothers incident she had felt worn down by it all. A planned meeting between the plaintiff, Ms West and Ms Skerry on 3 November 2008 did not occur as the latter was absent. The plaintiff left work early that day feeling stressed and anxious. The following day was Melbourne Cup day.

128 Ms West's insight into the plaintiff's condition was evident in notes of her formal supervision meeting with Ms Skerry when she returned to work on 11 November 2008. She recorded:

Given Gaye was presenting with increased levels of anxiety, often presenting with having panic attacks/shortness of breath, claims of not sleeping, lack of concentration and depleted confidence, the decision was made to move Gaye to another team.

What is less clear is at what precise point Ms West first recognised these symptoms of the plaintiff's deteriorating psychological health. The evidence supports an inference that Ms West recognised the plaintiff's condition well prior to Ms Boulos' email of 3 September 2008. Other employees, for example Ms Vains, had witnessed the plaintiff's ongoing distress and inability to cope due to anxiety. I am satisfied that the plaintiff was not a person who disguised her feelings and reactions.

129 On Wednesday 5 November 2008, a mental breakdown was imminent for the plaintiff, although she either did not recognise the signs or was in denial and continued to come to work regardless. The following day, the plaintiff emailed another team leader, Richard Bowers:

I am experiencing tremendous anxiety as we speak. I am finding it difficult to concentrate and get things done, am feeling very fragile ... I am affected in the following ways: Chest pain, lack of focus/concentration, teary, lack of confidence in anything I am doing.

130 On 7 November 2008, Ms West, presumably with Ms Thompson's approval, transferred the plaintiff to Mr Bowers' team. Ms West's contemporaneous note recorded the following:

Gaye Wearne was moved from Robyn's team to Richard Bower's team on 7 November 2008 in response to Gaye expressing ongoing concerns in relation to her perception that Robyn was contributing to her anxieties, and hence her inability to perform her work appropriately ... HR have been consulted throughout the last two years in relation to Gaye's claims of being unfairly treated.

...

Discussions had taken place between North West Youth Justice management, myself and Jasmine, Robyn and HR and Gaye about the pros and cons of moving Gaye to another team. However this was an option that was considered a last resort for a number of reasons. But notwithstanding the key rationale being that this could be interpreted as either Robyn and/or Gaye not coping, and that there could be benefits in both working through issues rather than shifting the issue.

131 Again, it is evident that in stating her justification for the decision, Ms West, clearly in consultation with Ms Thompson, had lost sight of the risk of psychiatric harm to the plaintiff that had been clearly identified in February 2007 and consistently reinforced in the intervening period. Although Ms West paid lip service to the plaintiff's vulnerability to harming her mental health through her relationship with Ms Skerry, that consideration carried little weight in their deliberations. The suggestion that there 'could be benefits' for both of them in working through, rather than shifting, issues demonstrated that the prediction of the substantial risk for the plaintiff's health voiced by Ms Thompson to Mr McDonald in February 2007, and repeated by Ms Boulos in September 2008, had been forgotten or was not being given proper consideration.

132 On 7 November 2008, the plaintiff broke down at work. Mr Bowers sent her home. That would be the last day she worked.

133 Several days later, on 10 November 2008, the plaintiff saw Dr Ng who recorded that she had not been coping at work and had been breaking down and crying. She was continuing to take 200mg of Zoloft daily.

134 On 10 November 2008, Ms Thompson reported to senior management that the Department continued to have ongoing work performance issues with the plaintiff, whom she suspected was heading for a WorkCover claim or grievance.

135 The plaintiff consulted a union representative and, with him, on 18 December 2008 met with John Byrne and Ms Thompson. Mr Byrne was the manager of human resources for the north and west metropolitan region. At this meeting the plaintiff and her representative pressed the allegation that she had been bullied and harassed by Ms Skerry, stating that she was terrified to go back to work. On 24 December 2008, the union representative wrote to Mr Byrne and provided to him a five page summary prepared by the plaintiff that outlined her allegations of bullying and harassment. Her evidence at trial was largely consistent with this outline.

136 On 2 February 2009 the plaintiff lodged a DINMA for 'stress/anxiety; bullying/harassment; emotional/psychological [injury]' arising from her work. At the same time, she submitted a workers injury claim form.

137 Mr Byrne's investigations produced detailed statements from both Ms West and Ms Skerry and he reported to his superiors on those investigations. One document that emerged in March 2009, during these investigations, was a meeting note dated 16 October 2008 in respect of a meeting between Ms West, the plaintiff and Ms Skerry on the topic of breach of confidentiality. In this record Ms Skerry intimated that the plaintiff's ultimate breakdown followed on the two brothers incident. I have determined that the incident occurred after 16 October 2008. The plaintiff submitted that since November 2008 Ms Skerry had attempted to cast blame on the plaintiff for her own breakdown by falsely asserting that the plaintiff's actions precipitating it amounted to a serious breach of client confidentiality, and were totally against Department procedure. As I have noted, neither Mr Reiffel nor Ms West supported this characterisation.

138 Ms Skerry relied on a typed note that she asserted she made at or shortly following an alleged meeting on 16 October 2008 about the two brothers incident. At the trial, this note was controversial. Ms Skerry's original note was not produced in answer to a call for it, although handwritten notes of all other relevant meetings were discovered, and put in evidence. Only the typed note sent by facsimile to Ms Thompson on 30 March 2009 was produced. On 27 March 2009, Ms Skerry noted a discussion with Ms West about additional (not original) notes from 16 October, being notes about a discussion with the plaintiff concerning the two brothers incident.

139 The plaintiff submitted that it was at this time, in early 2009, that the note was made, as it contains a curious typographic error referring to a date in 2009 (15/10/09), a mistake not likely to have been made in October 2008 (compared with January 2009) and likely to have been picked up if the document was drafted in 2008. Further, the statement that the plaintiff was 'directed by Eva not to breach client confidentiality again' was contradicted by Ms Skerry's statement to an investigator in February 2009 that:

... [m]y manager, Eva West, was advised by me of the situation and from that point it was taken out of my hands, and I went on sick leave as a result of it .... I went on two weeks' sick leave the next day or shortly afterwards that I confronted Gaye about the last breach.

This suggestion about the timing of the incident is consistent with the plaintiff's evidence.

140 Ms Skerry's evidence was that part of her concern related to the plaintiff undermining the other worker (Gemma Ryan). This contention was not put to the plaintiff in cross-examination and was not referenced in the typed note of the 16 October meeting, notwithstanding that it would have been a 'very important matter to note'. Further, Ms Skerry was speculating in her evidence as to whether she looked, or tried to look, at a note on CRIS about the steps the plaintiff had taken to secure appropriate permissions. Further, Ms Ryan remains an employee of the Department available to give evidence who was not called.

141 In all the circumstances, I consider it probable that Ms Skerry produced the note in March 2009. The note was a reconstruction of events about the plaintiff's breakdown designed to portray the plaintiff in a worse light and Ms Skerry in a more favourable light. As I have stated, the note contributed significantly to my conclusion that Ms Skerry was not a reliable witness.

142 Dr Penny Webster is a consultant in management with a specialisation in processes for handling workplace complaints and grievances. She holds a Bachelor of Social Science (Human Resource Development) from Southern Cross University; a Masters of Commerce with Honours (Industrial Relations and Human Resource Management) from the University of Melbourne; and a Doctor of Philosophy from the University of Melbourne. Her dissertation focussed on workplace grievance resolution systems. Dr Webster is an accredited mediator and has acted as a mediator in bullying disputes.

143 Dr Webster's consultancy business specialises in reviewing large organisations' complaints and grievance management systems. The process involves interviewing the hierarchy of people involved in complaints handling, review of relevant systems, policies and procedures, and reviewing a snapshot of complaints that had gone through the existing processes. She commenced this consultancy in 2004. During that time, Dr Webster has lectured at Melbourne, Deakin, RMIT and Victoria Universities, been a conciliation officer with the Accident Compensation Conciliation Service, a member of the Mental Health Tribunal and a member of the Victorian Institute of Teaching. Prior to establishing her private consultancy, Dr Webster was first the executive officer of the Schizophrenia Fellowship of NSW and then a project officer in the University of Melbourne's administration.

144 Dr Webster's opinions were expressed on the basis of assumptions drawn from documentation provided by the plaintiff's solicitors.

145 The defendant objected that Dr Webster had not properly identified the body of specialised knowledge underpinning the basis for her opinions. The defendant also took objections to significant portions of her report on the basis that the matters discussed in the report went beyond subjects on which Dr Webster was properly qualified to opine. On this matter, there was ultimately some agreement between the parties.

146 With regard to the preliminary objection, Dr Webster gave evidence to clarify her field of expertise. I am satisfied that she has a specialised knowledge in employer responses to employee grievances about behaviour in the workplace, particularly in the context of large organisational structures.

147 When writing her report, Dr Webster confined herself to the documentary material provided. She did not meet with the plaintiff or any of the other persons involved. She was unsure of the role played by Nancy Boulos and the Work Health Unit generally, but she expected that the involvement of the Work Health Unit in an ongoing way was a proactive step that the defendant was taking to deal with work health issues. Those steps may have included the involvement of a third party (such as Ms Boulos) to assist in conflict resolution, identifying and supporting the plaintiff's secondment, offering vocational assessments to identify other potential roles for the plaintiff, and allowing her to operate on a reduced case load. Dr Webster had limited information regarding the internal structure and processes of the Preston Youth Justice Unit, and the Department itself.

148 Dr Webster's report, although based on documentation in the case, was not for the most part focussed on findings within her area of expertise as defined. Her answer to the following question in that regard is instructive:

COUNSEL: Your expertise really is looking at the systems to deal with formal grievances or informal concerns, isn't it? --- Mm'hmm [agreeing].

And in terms of the systems that were in place for that formal disciplinary procedure you make no criticism of those, do you? --- There was very limited documentation around that, so I didn't have the policy around that, I didn't have the employer's - I had a fulsome report on it but from information that I had there was no particular problems with that. And my understanding was Ms Wearne wasn't particularly, although she acknowledged it she wasn't particularly concerned by it.

149 I concluded that Dr Webster's area of relevant expertise was properly confined to the efficacy or otherwise of complaints handling procedures, particularly in large organisations. The majority of her report went to matters well beyond that, such as speculating as to the details of the individual incidents, and the nature of the particular interpersonal conflict between Ms Skerry and the plaintiff and its effect upon the plaintiff. I did not consider that she could opine as to the psychological and/or psychiatric implications or potential consequences arising from a grievance handling process. None of that was rendered admissible by virtue of s 79 of the Evidence Act 2008.

150 Ms Webster's report expressed the following conclusions:

Question 4: If you believe the Defendant's response or conduct was not reasonable or adequate, then please state what alternative response or conduct should have been taken by a reasonable employer in the position of the defendant.

...

In summary, reasonable and appropriate responses would have included:

...

Recognition of her expertise by creating a specialist role that utilised her strengths and minimised the number of tasks where she was weaker. Whilst this would be more difficult, it certainly could have been achieved with a skilled manager and HR practitioner.

In addition:

Practical support with mastering the information and data systems. However the reality is that until GW's [i.e. the Plaintiff's] anxiety was reduced and her confidence lifted, in a substantial way, then her capacity to regain competence in the area may have been limited. By practical support I mean "student led" assistance, there is no point having someone come and "teach" where there are high levels of anxiety. "Student led" means that the student calls on assistance when they need it, and can dictate how that assistance is provided. It is an efficient way of learning because the student develops confidence very quickly by being in control.

Moving GW to a Team Leader who could take a generous and respectful approach to her. The Code of Conduct refers to respect and dignity and working collaboratively. A Team Leader who adopted this approach to GW would probably have had a positive relationship with GW. Again, by agreeing to GW's request, in a timely fashion, this would have put control back in her hands with the accompanying increase in trust in management and increase in confidence.

151 From the compilation of supervision notes, Dr Webster opined that in the context of meetings occurring in April 2008, a proper response to the plaintiff's complaints about Ms Skerry's behaviour would have been for Ms West or another appropriate internal manager to facilitate joint counselling between the two women and conduct a formal investigation into Ms Skerry's behaviour towards the plaintiff. She noted the importance of conducting an investigation to establish precisely the basis of conflict between two colleagues. This is because if the causes of a particular conflict are not properly understood at the outset, then the employer's approach to its resolution will likely be misconceived.

152 Dr Webster considered that large organisations such as the Department have a relatively high capacity for flexibility in the way that work tasks are allocated and undertaken and she suggested that it would have been possible, given the plaintiff's longevity in the organisation, to tailor a role that minimised the areas in which she was experiencing difficulties and drew on her strengths.

153 With regard to the change of team leader, Dr Webster was unable to define the earliest moment in time when this should have occurred, but opined that by sometime in 2008, after multiple requests had been made by the plaintiff, it would have been a reasonable strategy to move her to the supervision of an alternative team leader.

154 I now turn to the first issue in this proceeding - Was there conduct on the part of Ms Skerry that constituted bullying, humiliation and/or harassment of the plaintiff ('Ms Skerry's conduct')?

155 For the reasons that follow, on careful consideration of the whole of the evidence, the plaintiff has not persuaded me that Ms Skerry's conduct constituted bullying, humiliation and/or harassment of the plaintiff.

156 The plaintiff characterised Ms Skerry's conduct in the following ways, with which particular examples or incidents were then associated:

(a) Excessive and unreasonable criticism, including micro-management of the plaintiff's work performance: Report writing feedback generally, plagiarised report incident, caravan incident, and comma incident_._

(b) Providing the plaintiff with inconsistent expectations and instructions for how the plaintiff was to carry out her duties: intellectually disabled client incident, probation order incident, inconsistent instructions incidents.

(c) Exercising managerial functions in a manner that was inappropriate and unreasonable: whiteboard incident.

(d) Providing feedback in a manner and/or location that was inappropriate and which embarrassed or humiliated the plaintiff: hyperventilating incident, two brothers incident; and supervision in open areas generally.

(e) Isolating the plaintiff from the rest of the team by not passing on social and professional news: Failure to inform plaintiff about role change; and failure to inform plaintiff about becoming a grandmother.

(f) Failing to assist the plaintiff by providing documents and processes to help reach work targets and goals: Work Value Review process including failure to support and allocate portfolio project.

157 The Worksafe Victoria Guidance Note provides a definition of workplace bullying in the following 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, including to the risk of a psychiatric or psychological injury. This definition has been adopted in previous decisions of this court,[1] and was accepted as an appropriate definition by the parties.

158 In Swan v Monash Law Book Co-operative, I stated that:[2]

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

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

159 In Brown v Maurice Blackburn Cashman,[3] the Court of Appeal accepted the test set out in the guidance note and went on to say that the definition raised two threshold issues:

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

160 Before turning to these questions, I pause to note that allegations of bullying are often, by their very nature, predicated upon a multitude of individual occasions of behaviour none of which, when viewed in isolation, may appear significant enough alone to substantiate the allegation. I have taken this into account in my analysis of the conduct as alleged both as a number of individual incidents and in its totality. I will now set out my findings regarding the particular occasions of conduct said to constitute examples of bullying of the plaintiff by Ms Skerry.

161 The process of editing, providing feedback and co-signing external court reports was a key part of a team leader's supervision of case managers. The plaintiff characterised Ms Skerry's supervision of her report writing as bullying.

162 The plaintiff described how, from the early days of Ms Skerry's supervision, her reports were always criticised. After being submitted to Ms Skerry for approval she recalled that:

... many paragraphs would be scratched out ... had to be re-worded ... or [would come back with] questions: "where did you get this information from or this is wrong, bad English, this isn't correct, change this word ... [find] more information"; just lots and lots of alterations I had to make.

She recalled that none of her previous team leaders had taken a comparable approach to that of Ms Skerry. Her past experience was that supervisors made 'a few changes here and there but not like having the whole report ... crossed off'.

163 The plaintiff described, in respect of court reports, that Ms Skerry:

... [was] constantly changing instructions. One report I'm told to change what I have written, the next report I write it that way and I am told not to, its wrong. Robyn changed my draft reports so many times, that sometimes, she made changes to her own changes. This severely impacted on my time management and my belief in my ability to write reports.

The plaintiff complained of needing consistency from Ms Skerry regarding report writing and said that in her mind she should be given more credit as she had been writing reports for 10 years prior. She pointed to the comma and plagiarised report incidents as examples of unreasonable conduct on the part of Ms Skerry.

164 Ms Skerry stated that the plaintiff generally struggled to meet the required standard in report writing. Sections in the plaintiff's draft court reports that were required to provide detailed context to the client's offending were 'sometimes just breezed over'. On other occasions, Ms Skerry's concern was that the plaintiff's reports contained examples of personal opinion or bias. Ms Skerry denied that she provided feedback to the plaintiff on her report writing in a different manner to other workers under her supervision. However, she agreed that she more frequently amended the plaintiff's work than the reports of other workers, which mostly needed minimal corrections.

165 With my leave both the plaintiff and defendant adduced, as tendency evidence, evidence from witnesses who had also worked under the supervision of Ms Skerry at other times. These witnesses gave differing accounts of their personal experiences under Ms Skerry's supervision generally and specifically about corrections to draft reports.

166 Ms Donna Ascher was a case worker at the Sunshine office when she was supervised by Ms Skerry for much of 2010. Ms Ascher noted that with her previous managers there might be small corrections made before reports were signed off, but described her experience with Ms Skerry as 'appalling'. She recalled seeing that 'every page had comments on the side or lines through the reports, basically by the time you took the contents that were left, there was not much of a report left'. Ms Ascher described Ms Skerry's style as very difficult to work with, 'She was dogmatic ... no softness in her approach that I'd been used to before. It was just basically "you do what I say and that's it"'.

167 Ms Ascher's colleague in Sunshine at the time, Ms Trish Alexander, gave evidence of seeing a report which had been submitted to Ms Skerry by Ms Ascher which was '... covered in red crossed out ... it was an utter destruction of a report.'

168 From her own experience of submitting three or four reports to Ms Skerry for review while also working at the Sunshine office in 2010, Ms Alexander described Ms Skerry as pedantic, making minor changes that did not add to or subtract from the report. Corrections included how the date was written, or the inclusion of commas or single words. Ms Alexander said Ms Skerry corrected reports in a way that she had not experienced with other managers. Ms Alexander recalled the experience as: '... it wasn't positive ... she was difficult to - talk to. She was difficult to understand, she was difficult to reason with. She was very adamant. Very bombastic'.

169 Ms Skerry did not dispute the evidence given by Ms Ascher or Ms Alexander. She characterised her working relationship with both women as difficult, recalling that this was due to a number of factors including significant changes in the way the court service was managed out of the Sunshine office more generally. She challenged their impartiality, suggesting both had a real mistrust of management and were not open to supervision.

170 Two witnesses called by the defendant, Department employees Ms Tina Gee and Ms Paula Astilean, provided contrast to the experiences of the plaintiff, Ms Ascher and Ms Alexander.

171 After undertaking a student placement with Ms Skerry in 2002, Ms Gee was supervised by her as an employee of the defendant between December 2006 and September 2007. Ms Gee, who was new to the role, described Ms Skerry as a very skilled and experienced worker, whose judgment and feedback she valued. Ms Astilean was also supervised by Ms Skerry in 2009 when she had been working for the defendant for about five years. She recalled that there were no issues with her supervision, and confirmed that she found Ms Skerry to be a good mentor.

172 There was no reason not to accept the evidence of these witnesses, but it was of limited assistance. It is well understood that bullying can occur in a particular relationship and not be a feature of relationships with others because of the personalities of the individuals involved. Conduct that may victimise, humiliate, undermine or threaten one person may not be engaged in towards others and be confined to a particular relationship. Ultimately, whether there was unreasonable conduct by Ms Skerry towards the plaintiff depended on an assessment of their relationship and the general, somewhat vague, evidence of other relationships between those witnesses and Ms Skerry did not establish a tendency of Ms Skerry to act in a particular way towards the plaintiff. At its highest, one might infer that her management style was liked by some and disliked by others. Neither Ms Ascher nor Ms Alexander gave evidence of being victimised, humiliated, undermined or threatened by Ms Skerry. On the other hand, that Ms Skerry was a good mentor to Ms Astilean and Ms Gee cannot rationally affect my assessment of Ms Skerry's conduct towards the plaintiff.

173 Ms Skerry did not dispute any of the particular incidents of complaint made by the plaintiff about her supervision other than to say it was difficult to give the plaintiff feedback, as she wasn't always accepting of it and often didn't understand the reason why it was being given. Ms Skerry asserted that she tried to put across feedback 'in a very positive way', but acknowledged it was received 'in a very negative way'.

174 Ms Skerry suggested that she was always very mindful of being as positive as she could, because the plaintiff consistently complained that she felt that she wasn't being positive enough. The manner in which feedback was given and received, in addition to the actual content of the feedback itself, was a feature of the conflict over the plaintiff's report writing. In contrast, Ms West had occasion to explain the reasons for changes and corrections to reports to the plaintiff, who was generally appreciative of such explanations, describing her as 'sympathetic and supportive at all times'. It is probable that Ms Skerry was more abrasive in her management style than Ms West.

175 I am satisfied that, notwithstanding the plaintiff's experience, issues had been identified with the plaintiff's report writing prior to the commencement of Ms Skerry's supervision. For example, at a meeting on 26 May 2006, the drafting of court reports was identified as an issue for the plaintiff requiring attention. Although the plaintiff could not exactly recall, she accepted that the issue about report writing commenced early in her time at Preston.

176 The plaintiff was unable to adjust to and meet the higher expectations placed on her report writing, including particularly the use of the new computer based CRIS system. This change in expectations generally was referred to by several witnesses, and experienced by her colleague Ms Vains who had also moved from the Sunshine office where a comparatively lower set of standards prevailed. In any organisational change there are pressures on both managers and staff to adapt to new ways. The nature of the plaintiff's job was changing during 2005-2006 in a manner that she had not anticipated, and I am satisfied that she was resistant to that change. The tensions in this respect pre-existed her supervision by Ms Skerry.

177 Ms Skerry was obligated to implement the practices of the Preston office and the new ways coming with computerisation of the Department's records. I accept that Ms Skerry's criticisms of the plaintiff's report writing were not without basis and that she had a duty to press for compliance with the Department's expected practices in an appropriate way. It was not open to draw the opposite conclusion based solely on the minor instances of particular feedback recalled by the plaintiff, being the comma and plagiarised report incidents.

178 Having said that, I reject Ms Skerry's evidence that she was generally mindful of being positive towards the plaintiff when providing her with feedback during the claim period. There were only limited occasions when such mindfulness was evident. I am satisfied that Ms Skerry found the plaintiff to be a difficult employee who tested her tolerances and probably, quite unintentionally, repeatedly provoked her frustrations. By as early as mid-2007 the interpersonal conflict between them was escalating towards the point where their working relationship was becoming untenable. The plaintiff recognised this fact and its implications for her well-being.

179 The relationship deteriorated to the point where ordinary aspects of a team leader's supervision of a case worker, such as the drafting and provision of feedback on reports, had become a source of interminable conflict and almost invariable upset for the plaintiff. However, Ms Skerry's behaviour with regard to correcting the plaintiff's reports was not unreasonable in the relevant sense as it was expected by her employer and did not go so far as to contribute to a pattern of workplace bullying. Rather, the persistent report writing dispute was one aspect of a broader interpersonal conflict, a subject to which I will return.

180 During the claim period, the plaintiff and Ms Skerry regularly met formally in supervision meetings at which the status of the plaintiff's clients would be discussed. The main staff area at the Preston office was open plan but there were also separate private meeting rooms available for occasions such as formal supervision. Ms Skerry regularly, the plaintiff suggested almost always, conducted supervision when the plaintiff was at her desk in the open plan area. In such meetings, the plaintiff recalled that Ms Skerry was 'often very, very critical ... I'd always be told my time management was really bad'. The plaintiff expressed her concerns about Ms Skerry addressing practice issues with the plaintiff at her desk to Ms West, who agreed she had raised with Ms Skerry and indeed 'with all team leaders at times' that conducting supervision meetings in the common area was inappropriate.

181 Ms Skerry described 'formal' supervision sessions that occurred regularly every two weeks in a private room, as different to 'informal' or 'live' supervision that constituted all daily discussions about clients and other matters, which would often occur at the worker's desk. It was not put to Ms Skerry that she generally gave feedback in the open plan office.

182 I am satisfied that Ms Skerry did give feedback in the open plan office in a manner that caused embarrassment and humiliation to the plaintiff and that contributed to her anxiety and stress. A reasonable person, having regard to all the circumstances, would expect such behaviour to victimise, humiliate, undermine or threaten the plaintiff. That said, I am not persuaded that in this respect Ms Skerry repeatedly engaged in unreasonable behaviour. Ms Skerry's supervision practices would justly draw comment from her own supervisor, as it did, but I consider this behaviour fell short of bullying conduct.

183 The plaintiff complained that Ms Skerry failed to assist her as required with her Work Value Review application for a permanent upgrade to a CPW-3 position, particularly in failing to provide her with an appropriate portfolio project, or with the consultation and support required. The allocation of appropriate case work to allow the plaintiff to act at the higher CPW-3 level was primarily the responsibility of Ms Skerry as the plaintiff's team leader, in consultation with Ms West. Ms Skerry agreed that this was her role in that respect. However, I am satisfied that the decision to not give an appropriate case work load to the plaintiff in late 2007 and into early 2008 was not made by Ms Skerry.

184 I accept Ms West's evidence about these events. She recalled that following discussions between herself, Ms Skerry and Ms Thompson, given the not insignificant concerns about the plaintiff's performance at that time, a decision was made not to add further responsibilities to her existing workload. I reject the plaintiff's submission that Ms Skerry's failings in this respect constitute, or contribute to, bullying conduct.

185 I accept that the Work Value Review process was intensely stressful for the plaintiff over a prolonged period. However, the process began before the claim period. As I have set out already, it commenced with the missed opportunity to apply for reclassification and the grievance brought against Mr Reiffel in 2006. That process was protracted, but the grievance process absolved Mr Reiffel of wrongdoing and the plaintiff was offered an opportunity to 'act-up' in the higher level role for a period. I am satisfied that although Ms Boulos and Ms Van Lint observed that the length and uncertainty of this process caused the plaintiff considerable anxiety, it preceded Ms Skerry's relationship with the plaintiff.

186 The plaintiff had struggled with meeting the increased requirements of being an acting team leader when she took leave followed by the secondment in 2006. In late 2007, the Work Value Review was deferred by Ms Thompson for a further six months on the basis that the plaintiff trial working at the CPW-3 level for that period. As I have noted, the plaintiff was frustrated that she was not offered appropriate work in early 2008, but she was reporting panic attacks and stress about the increased workload. The plaintiff's reaction was consistent with her earlier experiences in 2006. I am satisfied that the decision to not provide the plaintiff with additional work at the CPW-3 level including a portfolio project was made by Ms Thompson and Ms West, and was not, as the plaintiff perceived, an example of undermining or bullying conduct on the part of Ms Skerry. Rather, it was an instance of Ms Thompson and Ms West appropriately recognising the risk to the plaintiff's health in overloading her with work duties.

Incidents in 2008 - Caravan incident, whiteboard incident, intellectually disabled client incident, probation order incident, giving inconsistent client instructions incidents

187 The defendant submitted that any departure from the standard Department processes and procedures required a high level of accountability and team leader approval and management. It submitted that Ms Skerry did not act in an unreasonable manner and her comments, which severally lay at the heart of the complaints of bullying, were directed at maintaining proper process by employees under her supervision. A supervisor in her position was entitled to give direction and instruction to an employee that is consistent with the employer's policies and procedures. So much may readily be accepted and is, of itself, unlikely to amount to repeated unreasonable behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten the employee.

188 That said, Ms Skerry took a relatively prescriptive approach to the implementation of Departmental procedures, and it is her approach to the accepted duty of giving direction and instruction to an employee that must be evaluated against the standard. The incidents involving the intellectually disabled client and the probation order demonstrate a level of inflexibility in Ms Skerry's approach to implementing Departmental policy. The appropriateness of the substance of the plaintiff's recommendations or communications themselves did not appear to be the issue. Rather, Ms Skerry's position was that it was inappropriate for the plaintiff to take such steps unilaterally without recourse to the team leader. That attitude drew, on each occasion, a sharp response raising the issue of whether Ms Skerry's demeanour in discharging a legitimate supervisory function was repeated unreasonable behaviour that a reasonable person would characterise as bullying.

189 I accept that in the context of the work conducted by the Youth Justice Unit, Ms Skerry's somewhat rigid approach to her role became impractical in certain circumstances. The intellectually disabled client incident was an example. It is not difficult to imagine occasions when issues that ought be brought to a court's attention might only become known to a case worker at a very late stage, such as in that instance during the course of a hearing. I accept Mr Reiffel's view that a worker with the plaintiff's experience was, and ought to have been viewed as, suitable to make the recommendation that she did in the circumstances without seeking pre-approval from the team leader.

190 Similarly, with regards to the probation order incident, the plaintiff acted appropriately. It may well have been impractical for her to first seek permission from Ms Skerry or another team leader before assisting a future client in the precincts of the court.

191 With regard to her response to the caravan accommodation email from the plaintiff, Ms Skerry, while acknowledging that she understood the message in Ms Boulos' email of 3 September 2008 regarding the plaintiff's mental fragility, maintained that she did not see her email as inappropriate. She viewed it as an invitation to the plaintiff to come and speak to her about it further. The caravan incident displays a heightened level of frustration and/or impatience on the part of Ms Skerry with the manner in which the plaintiff raised this suggestion, characteristic of the problematic working relationship between the two women. The level of communication between them was clearly poor, a further example of which is the plaintiff's complaint that Ms Skerry was giving her inconsistent instructions regarding client management, an issue which they were unable to resolve in a satisfactory manner by consultation.

192 I am satisfied that Ms Skerry was capable of a rigid approach to her duties as team leader which could, on occasion, cause her reactions to be insensitive or confusing to the plaintiff. However, this was not always the manner of her dealings and clearly supervision of the plaintiff was not an easy task. The plaintiff's complaint about the incident with the whiteboard is one such example where a comment regarding a standard office-wide requirement has become distorted between the plaintiff and Ms Skerry due to pre-existing tensions in their relationship.

193 Ultimately, over a period of 21 months, the plaintiff only points to a limited number of incidents that may be characterised as a failing by Ms Skerry to control her frustrations with the plaintiff. Those interactions were not a pattern of repeated unreasonable conduct on her part and did not constitute workplace bullying. Rather, those incidents are examples of miscommunications in the context of escalating interpersonal conflict and would be so assessed by a reasonable objective observer.

194 The plaintiff's complaints that Ms Skerry isolated her by, firstly failing to inform her of a role change, and secondly, becoming a grandmother, are incidents which are difficult to view in isolation. I accept Ms Skerry's reasons for not telling the plaintiff immediately about the change in her role, being the need to show sensitivity about internal promotions. If the plaintiff was distressed by the failure to personally inform her of the promotion, I am not persuaded that the plaintiff's reaction was reasonable. The non-communication to the plaintiff of Ms Skerry becoming a grandmother in and of itself it appears innocuous. Given the animosity between the two women by at least mid-2008, I accept that the plaintiff interpreted this snub in a manner that caused her distress.

195 Each of these occasions are manifestations of interpersonal conflict between the two colleagues rather than instances of bullying behaviour by Ms Skerry. Her behaviour was not unreasonable behaviour in the relevant sense and objectively assessed cannot be regarded as having the necessary tendency.

196 The parties disagree about the timing of this incident, but I have found that it occurred on 28 October 2008, in the week before the plaintiff had her breakdown. I was neither able to fully assess, nor interested in, the merits of the positions of the players in this incident. Rather, the issue is whether Ms Skerry's behaviour was, objectively assessed, unreasonable and had the necessary tendency as alleged. The defendant submitted that if an imminent breach of privacy was suspected, it was clearly a matter that required immediate intervention. Ms Skerry explained the basis of the urgency being the information that a further contact in breach of privacy was potentially about to occur. This was why this conversation occurred at the plaintiff's desk rather than in a private meeting room.

197 This incident exemplifies the dysfunctional nature of Ms Skerry's supervision of the plaintiff by this point. The plaintiff had conducted herself in a manner which Ms Skerry considered inappropriate. Rather than seeking to establish what had occurred, Ms Skerry assumed that the plaintiff had engaged in conduct in breach of the Department's rules, consistent with her view of the plaintiff's poor compliance with directives on privacy in the past. Regrettably, Ms Skerry confronted the plaintiff immediately within the open plan office, having jumped to the conclusion that the plaintiff's apparent breach of privacy rules had to be remedied at once. Unsurprisingly, the confrontation caused the plaintiff hurt, humiliation, anxiety, and stress. The strength of the confrontation was also evident from the fact that the following day Ms Skerry took sick leave because she was worn down by it.

198 I am satisfied that Ms Skerry, by this conduct, ignored the explicit warning about the fragility of the plaintiff's mental health that specifically referred to the stressful consequences of the plaintiff's struggle to accept negative feedback. I am not satisfied that there was no time in which to ask the plaintiff to meet with Ms Skerry in one of the private rooms, to ask her what had occurred, and to have dealt with the issues properly arising in a more sensitive fashion consistent with the, by now accepted including by Ms Skerry, risk of the plaintiff's extreme vulnerability to 'hitting a brick wall'. Further, Ms West's failure to admonish or counsel Ms Skerry in respect of her conduct on this occasion during a supervision meeting on 11 November 2008 reflected poorly on her supervision of Ms Skerry.

199 I am satisfied that this incident pushed the plaintiff, in a metaphorical sense, into the 'brick wall'. So much is clear from her email communication with Mr Bowers the following Wednesday. The plaintiff was still struggling to cope with her stress and to manage her job without quitting, without, as she saw it, conceding to a bully. Immediately upon being informed that she was being moved to the supervision of a new team leader, her resistance collapsed and she broke down. Having said that, whether Ms Skerry had engaged in bullying conduct is not evaluated by the response of the plaintiff to the incident.

200 After careful consideration, and with some hesitation, I do not consider that this incident involved bullying or harassment of the plaintiff. It is, rather, an example of the broader extent of miscommunication and personality conflict between the plaintiff and Ms Skerry. It was typical of the plaintiff's propensity to identify any incident involving Ms Skerry that caused her stress as constituting bullying, when objectively viewed it was a legitimate, if overly rigid, approach by Ms Skerry to her role as team leader. Although the incident could, objectively, be regarded as having a tendency to cause the plaintiff hurt, humiliation, anxiety, and stress, I am not persuaded that, objectively assessed, Ms Skerry's conduct was unreasonable or part of a repeated pattern of unreasonable behaviour.

201 While I do not consider that this incident constituted bullying, I accept that it was a substantial blow to the plaintiff's psyche and psychological health. It was quite inappropriate conduct because, as I will shortly explain, Ms Skerry failed in her conduct as supervisor to have due regard to her employer's duty to avoid inflicting mental harm on a clearly fragile and vulnerable employee.

202 Ms Skerry's approach to her role as team leader was exemplified in the following exchange, during cross-examination:

COUNSEL: Particularly by early 2008, you were clashing in relation to what you wanted done and the way Ms Wearne thought it should be done, weren't you? --- It was what the Department wanted done, not what I wanted done.

You made a change to her report insisting on a change, insisting it be done in your way; that met resistance didn't it, in the early days? --- I was basically trying to get Gaye to work within the frameworks of Youth Justice practice direction. So, sorry, what was your question?

The question was, you were insisting things be done the way you said to do them, and Ms Wearne was resisting that, wasn't she? --- It wasn't the way I was insisting, it was the way the Department was insisting. But yes, she was resisting.

And you were insisting on behalf of the Department? --- Yes. That's my role.

203 Ms Skerry had been aware that the plaintiff was in a fragile mental state 'from the very beginning' following her assignment to Ms Skerry's team in early 2007. Cross-examined, she agreed that this awareness of the plaintiff's fragile mental state, and the need to manage that to avoid a risk of injury to the plaintiff, was apparent for the whole time that she was in her team.

204 My findings demonstrate that from the time of the plaintiff's return from secondment the relationship between the two women became increasingly dysfunctional and escalated in the latter part of 2008 to culminate in the plaintiff's breakdown. The plaintiff alleged that almost all feedback to her from Ms Skerry was negative and therefore unreasonable. I do not accept that this was so.

205 I accept Ms West's characterisation of their relationship as for the most part 'varied', at least until the plaintiff approached crisis in the latter part of 2008, to be an accurate appraisal. Ms West was speaking regularly to both women about these issues during the claim period and was well placed to make that assessment. Objectively, the plaintiff's personality was such that she perceived as criticism all feedback that wasn't entirely positive, as Ms Boulos observed. The plaintiff had experienced similar difficulties with her previous team leaders, which was consistent with her personality and perception of the management within the Preston office generally, rather than the particular behaviour of any one individual.

206 The essential characteristics of bullying behaviour that may create a risk to the mental or physical health of an employee are that it is both repeated and unreasonable.

207 I accept that Ms Skerry's behaviour, at least in respect of some incidents, created a risk to the mental health of the plaintiff. However, objectively assessed, my findings do not support the plaintiff's case that Ms Skerry bullied and harassed her during the course of her supervision. Overall, while there may be questions about Ms Skerry's approach and demeanour, an employee is not entitled to be managed by a model, or ideal, supervisor. It is not a perfect world. Mostly, the essential feature of the conduct alleged against Ms Skerry is that it concerned valid directions, instructions and supervision and objectively assessed was not unreasonable. To the extent that it might be thought unreasonable, that assessment of her conduct is about her demeanour rather than her actions.

208 Further, when viewed as a whole, Ms Skerry's behaviour was not sufficiently repetitive to constitute bullying of the plaintiff. Ms Skerry was at times overly harsh and insensitive towards the plaintiff, who was experiencing a high level of stress that did not entirely flow from Ms Skerry's supervision. The work-related stress and anxiety experienced by the plaintiff was also due to the changing nature of her role, the prolonged and uncertain nature of her application for reclassification to the higher CPW-3 level, and the generally stricter standards expected in the Preston office. I am satisfied that while Ms Skerry's management style may have been somewhat rigid and inflexible, she did not set out deliberately to demean, belittle or harass the plaintiff.

209 The bullying allegation has not, on the balance of probabilities, been made out. The first issue is resolved in favour of the defendant.

210 I now turn to the plaintiff's alternate allegation of breach by the Department of its duty of care to prevent her from suffering psychological harm in the course of her employment. The second issue identified is what was the scope and content of the duty of care owed by the defendant to avoid exposing the plaintiff in the circumstances of this case to an unnecessary risk of injury?

211 It is uncontroversial that, as an employer, the Department owed a duty of care to the plaintiff, its employee, to avoid exposing her unnecessarily to the risk of injury.

212 As the plaintiff's employer, the defendant was at all relevant 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 work system with appropriate supervision. The duty was described by the High Court in Czatyrko v Edith Cowan University[4] in the following terms:

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

213 The defendant accepted that it owed a duty to the plaintiff to take reasonable care in respect of the risk that she might suffer a psychiatric injury in the course of her employment. In issue was the content of that duty, taking into account the continuing employment relationship and accepting that this is not a case of bullying.

214 In Koehler v Cerebos (Australia) Ltd[5] (Koehler), which was not a bullying case, the High Court rejected the proposition that reasonable foreseeability alone was the determinant of the content of the duty of care in cases alleging psychiatric injury resulting from work duties.[6] The plaintiff had told her supervisor on many occasions that she was unable to cope with the volume of her work, but did not tell her employer that her health was being compromised. The employer did not adopt her suggestion that she was unable to maintain her performance of the workload and she was subsequently diagnosed with a psycho-physical disorder. In such cases, the court held that,[7]

[t]he central inquiry remains whether, in all the circumstances, the risk of a plaintiff .... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.

215 Earlier, in Tame v New South Wales,[8] Gleeson CJ made clear that the 'person of normal fortitude' test had no application where a defendant knows, or ought to know of the peculiar susceptibility of a plaintiff to suffer psychiatric harm. The Chief Justice stated:[9]

Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established ... "an objective criterion of duty".

The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to "a normal standard of susceptibility" as one of a number of "general guidelines" in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a "normal" person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though "normal fortitude" cannot be regarded as a separate and definitive test of liability.

216 In Koheler, referring to Tame, the Court said:[10]

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.

217 The New South Wales Court of Appeal in New South Wales v Mannell,[11] in deciding an appeal on facts closely analogous to those of the present case, pointed out that Koehler:[12]

... was a case where a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the employee. In the present case there was the evidence of actual notice of the foreseeability of mental breakdown; and there was much more than a psychiatric breakdown stemming from the inevitable parameters of the contract of employment.

218 In Taylor v Haileybury,[13] Beach J (as he then was) observed with regard to the risk of psychiatric injury:

(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 psychical environment in which an employee works.

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

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

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

219 Subsequently in Swan v Monash Law Book Co-operative,[14] which was a case of workplace bullying, I said:

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

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

220 Box Hill Institute of TAFE v Johnson,[15] involved a claim by a trade teacher on two grounds - firstly, that he was required to engage in unreasonable manual handling resulting in injuries to the back and neck, and secondly, that he had been bullied and harassed by an immediate supervisor resulting in a serious psychiatric injury. On the application for leave to appeal, the Court of Appeal identified that each of the proposed grounds of appeal alleged error by the trial judge in reaching a factual conclusion on the basis of which he found in favour of the respondent on the issue of liability. The application for leave to appeal concerned questions of breach, causation and damages and I will return to it.

221 In the case at trial, J Forrest J extracted the following principles from the case law relevant to the existence of a duty:[16]

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

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

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

(i) the contract of employment and obligations arising from it; and

(ii) evident signs of an employee's inability to carry out work activities associated with the risk of psychiatric injury

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

222 I have found that not just Ms Skerry and Ms West, but also Ms Thompson and Mr McDonald knew of, and understood in general terms the reasons for, the plaintiff's psychiatric vulnerability at the time she returned to work at the Department's Preston office in early 2007. I am also satisfied that by mid-2007 at the latest, the relationship between Ms Skerry and the plaintiff was problematic and that by April 2008 it had severely deteriorated, and was causing the plaintiff considerable anxiety and stress. I am satisfied that by this time Ms West and Ms Thompson and, probably, Mr McDonald also knew the specific fact that the plaintiff's psychiatric vulnerability was being strained by a poor relationship with her immediate supervisor.

223 I have found that the Department was from the outset of the claim period or, alternatively, well before it was completed, aware that the plaintiff was suffering from a psychological condition (anxiety and stress, probably associated with post-traumatic stress disorder) and that this condition was related to her work. There was a serious issue between the plaintiff and Ms Skerry such that it was likely (or, at least, there was a foreseeable risk) that any inappropriate supervision (or confrontation) between the two would cause further psychological injury to the plaintiff. There was also a serious concern that other aspects of the plaintiff's work load could also aggravate her psychological condition. This risk of injury was acknowledged as capable of causing the plaintiff to break down and suffer a serious psychiatric injury.

224 The deteriorating relationship between Ms Skerry and the plaintiff was never formally identified internally as a complaint of bullying, presumably on the basis that no DINMA was lodged by the plaintiff in that regard, until after she ceased work. Ms Boulos, like Ms West, thought that the issue was one of interpersonal conflict between the plaintiff and Ms Skerry, and recalled the plaintiff complaining about 'the issues of [Ms Skerry] being nit-picky, overly critical and I guess unreasonable in her management ... she did feel unsupported, yes'. Ms Boulos agreed that during 2008 there were a number of moments when the plaintiff appeared upset, tearful and frustrated at work. Ms West had identified the need for additional support of the plaintiff when she returned to Preston in early 2007.

225 Further, by early September 2008, all three of the plaintiff's direct supervisors were put on notice by Ms Boulos' hand-over email that the plaintiff was 'extremely vulnerable' to suffering a mental breakdown. They each already well understood this risk.

226 From about August until November 2008 was the critical point in time, because during this period the plaintiff's health was deteriorating towards the breakdown which eventually occurred in early November 2008. Even had they not understood that risk, in this period, the plaintiff manifested clear signs of repeated and consistent upset and psychological disturbance that did put Ms Thompson and Ms West, and ought to have put Ms Skerry, in a position where they knew or ought to have known that the need for action to ameliorate the risk of damage to the plaintiff's health was immediate and pressing. The key milestones were as follows:

(a) On 8 August 2008, following her return from leave, the plaintiff attended a joint supervision meeting with Ms West and Ms Skerry in which she reported 'it has been a horrific year, biding my time until I can leave here ... thinking about working 4 days a week. Emotionally exhausted from YJ'.

(b) On 3 September 2008, Ms Boulos sent her handover email stating that 'the concern I have with Gaye is that she is extremely vulnerable to becoming long term incapacitated for work should she hit a "brick wall"'.

(c) In October 2008, two confrontations - the caravan accommodation incident and the two brothers incident - occurred between the plaintiff and Ms Skerry that brought the plaintiff closer to the point of breakdown. These confrontations could, and should, have been avoided.

(d) On 7 November 2008, the plaintiff broke down on transfer to a new team.

227 3 September 2008, when Ms Boulos wrote the handover email, is the latest occasion in the claim period when there was, unequivocally, actual knowledge or a significant foreseeable risk of psychiatric injury to the plaintiff arising out of her relationship with Ms Skerry and an opportunity to ameliorate that risk or act to avoid that consequence. Given the plaintiff's earlier indication of her mental state on 8 August 2008 and the fact that even prior to this there had been multiple meetings on an ongoing basis (described as a 'revolving door' with the plaintiff in and out of Ms West's office), by no later than mid-2008 it was not plausible to deny this risk.

228 In summary, by early 2008, alternatively mid-2008, and certainly no later than 3 September 2008, the Department knew that:

(a) The plaintiff was suffering from a psychological condition (characterised by stress, anxiety and occasional panic attacks) from her past experiences at the Sunshine office;

(b) The plaintiff was a person vulnerable to psychological injury through workplace stress;

(c) There was serious and ongoing interpersonal conflict between the plaintiff and her immediate supervisor, Ms Skerry;

(d) The plaintiff was experiencing elevated levels of stress and anxiety and informing her superiors of the fact;

(e) The aggravation of the plaintiff's psychological condition was related to her work and particularly to her relationship with Ms Skerry but also to other factors as discussed above; and

(f) It was likely that any further interaction or confrontation with Ms Skerry would injure the plaintiff's mental health.

229 I am satisfied that, in accordance with the principles I have identified, the Department's duty to take care to ameliorate the risk of psychiatric injury in the course of her employment, particularly in the manner of supervision of her duties and her exposure to stress and anxiety through work tasks and interactions was enlivened in the claim period. There was nothing in the terms of her employment that precluded that duty of care from arising. The content of the duty was to prevent the plaintiff from suffering a psychological injury by taking such steps as were able to be taken in the circumstances. Those steps included but were not limited to -

(a) Moving the plaintiff to the supervision of a different team leader;

(b) Developing and implementing an appropriate policy for receiving and appropriately handling complaints of bullying and serious interpersonal conflict;

(c) Finding a suitable alternative position for the plaintiff that avoided the stressors affecting her;

(d) Changing the plaintiff's working conditions;

(e) Adopting more pro-active solutions in respect of educating supervisors with the necessary skills to appropriately manage persons such as the plaintiff; and,

(f) Adopting more pro-active solutions including counselling, training and professional development to assist the plaintiff with work place change, report writing, acceptance of feedback and managing work stress.

230 It follows from what I have said about the existence and scope of the duty that there was a reasonably foreseeable risk of injury to the plaintiff which was not farfetched or fanciful.

231 On this issue, an assessment of the reasonableness of the Department's response to the reasonably foreseeable risk of injury to the plaintiff is required.

232 In New South Wales v Fahy,[17] 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 person would have done, not backward to identify what would have avoided the injury'. [18]

233 In Hegarty v Queensland Ambulance Service[19] Keane JA (as his Honour then was), referring to Koehler, relevantly stated:[20]

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, 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.

234 In Brown v Maurice Blackburn Cashman,[21] the Court of Appeal said of this exercise in the context of a workplace psychiatric injury brought on by one employee's relationship with another employee:

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

235 Then in the litigation culminating in Box Hill Institute of TAFE v Johnson,[22] at trial, J Forrest J said:[23]

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

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

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

236 The Court of Appeal addressed the question as to what response, if any, a reasonable employer ought to have made to address the reasonably foreseeable risk of psychological injury to the employee (as found by the judge) arising from the difficulties that had arisen in relation to his relationship with a supervisor. It said that the question of what a reasonable person, in the position of the defendant, would have done, is a prospective inquiry that must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred.[25] Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

237 The Court of Appeal approved of the statement of Spigelman CJ, in Nationwide News Pty Ltd v Naidu,[26] in which the Chief Justice said:

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

It is important to bear in mind the precise nature of the risk of injury, a matter that in this case is addressed above at [223] above.

238 The Court of Appeal noted that the judge concluded that in response to the identified particular risk, the employer was required to take steps to ameliorate the difficulties in the relationship between the plaintiff and the other worker, particularly as perceived by the plaintiff. The judge did not find that the employer did nothing, and some commendable actions were taken, but he found that it failed to take particular steps to alleviate the difficulties in the relationship between the two workers.

239 In this case, because the risk of psychological injury was the issue, determining what was reasonable in the context of an employer/employee conflict is not an easy task. I am conscious of the need for circumspection in the evaluation, by no later than September 2008, of a reasonable employer's response to the plaintiff as identified in the cases noted above. I am satisfied that the defendant did not exercise the standard of care reasonably expected of an employer in the circumstances for the following reasons.

240 Ms West recalled that the plaintiff first requested to move team leaders in early 2008. The plaintiff's evidence was that she first requested a move in about mid-2007, but I prefer Ms West's recollection on this point. Ms West would consider that request in consultation with the Work Health Unit and Ms Thompson. Various considerations apart from the worker's request were relevant, including the capacity and relative experience of other potential supervisors, any past issues between the worker and other team leaders, and the potential disruption to the existing team structure and the needs of clients.

COUNSEL: So as the person getting information from both Ms Wearne and Ms Skerry, independently of each other, what assessment did you form about the ongoing nature of that team leader/case worker relationship, after the request had been made to move teams? --- That varied, also. My perception at the time was that Robyn was supporting her to a very high degree in terms of ensuring or supporting her to actually complete tasks. So a lot of information management tasks were actually completed by Robyn. She was very supportive ---

She, sorry, she being? --- Ms Skerry, Robyn was very supportive. She talked about, or my assessment from what she talked about was that she wanted to support Gaylene to achieve the performance at the current time. Gaylene also wanted the same. To me it seemed a miscommunication issue, in terms of how information was given and received.

242 Ms Skerry's recollection of the relevant considerations accorded with that of Ms West. I accept that Ms Skerry's management of the plaintiff appeared to Ms West to be supportive, but it is clear that apart from the plaintiff's requests and complaints, Ms West had information that suggested otherwise. In supervision meetings, Ms West regularly conversed with Ms Skerry about the latter's management of the plaintiff, which demonstrates that this was an ongoing issue. Ms West also recalled Ms Vains approaching her from time to time to discuss how the plaintiff was coping with personal issues and frustrations with her work. Ms Vains recalled speaking with Ms West on a regular basis about her observations of the plaintiff and that she had recommended numerous times that the plaintiff be removed from Ms Skerry's supervision to another team leader, including suggesting her own team leader, whom Ms Vains found to be very supportive.

243 Ms West understood the plaintiff's complaints to relate to her perceived unfairness in the feedback she was receiving from Ms Skerry, as she considered herself a very experienced worker and had not received that kind of feedback in the past. Ms West stated that she investigated the plaintiff's claim that she was being treated unfairly. She recalled asking for some of the plaintiff's reports to come to her once they had been edited by Ms Skerry, including reports which had handwritten amendments on them. She described what she saw as 'reasonable' and 'standard' in terms of feedback, but continued to monitor the situation and explained the rationale behind some of the changes to the plaintiff. The amendments were around structure, language, and the context provided for in the client's history. She recalled that the plaintiff's attitude was resistant, along the lines of: 'I've been doing this for 15 years and I think this is ridiculous'.

244 I am satisfied that Ms West rejected the plaintiff's complaint of unfair feedback and that this rejection, in the context of the plaintiff's continuing requests was stressful and anxiety provoking for the plaintiff, because there was no other avenue for the plaintiff to raise her complaints other than to Ms Skerry's immediate supervisor. Further, Ms West's assessment was based on the Department's requirements for report writing, which was not the critical feature of the unfairness complained of. Rather, it was the issue of demeanour and manner in the delivery of feedback that was the real issue that Ms West ought to have investigated and dealt with, because of her knowledge about the plaintiff's vulnerability to psychological injury.

245 Despite multiple requests during 2008, the plaintiff was not transferred to the supervision of another team leader. Ms West recalled there was a combination of reasons. Firstly, the status of the relationship between the plaintiff and Ms Skerry varied. Intermittently between requests to be moved, the plaintiff would comment that 'things were going reasonably well, and that Robyn was very supportive'. Secondly, the predominant issue at that stage was considered to be the plaintiff's own health issues and personal problems and not Ms Skerry's supervision of her. Thirdly, the only other team leader with appropriate experience was Ms Garten who had previously, and with some issues, managed the plaintiff. I would add that there appeared to be a fourth reason, which was that a change of team was not being recommended by the Work Health Unit.

246 Ms Boulos' role in this process appeared equivocal. She stated that the decision on a request by a worker to move to a different team would ultimately be made by the management of the particular unit involved, depending on whether they could support the change operationally. Her role in the process was limited to working with management and making a recommendation from the Work Health Unit's perspective. Her recommendation would involve consideration of a variety of factors including medical information, wellbeing considerations and the structure of the team involved. Moving a worker experiencing difficulties to a different team, while in the hierarchy of things to be considered, was not necessarily the first option, and from her experience would not necessarily mean the problem would go away. On careful evaluation of her evidence, I concluded that Ms Boulos gave much less weight to the issue of the plaintiff's wellbeing than might appear evident from this abstract assessment of the process. Rather, I am satisfied that her principal concern was to protect the interests of the Department as she saw them.

COUNSEL: Is moving teams in the hierarchy of things to be considered? --- That's not necessarily the first option.

In what circumstances might it be the first option? --- If there were going to be significant risks to the health and safety of the individual, um, imminent risk or imminent concerns that the person's going to deteriorate, we would - we would strongly consider that person moving.

In the time that you were involved in the management of Gaye Wearne's situation, did you ever form the view during your involvement that the imminent risk was there? --- I didn't have that view, no.

COUNSEL: When you talk about there being no "quick fix" what are you describing in terms of the problems that [the plaintiff] was facing? --- Yeah. I guess I'm describing where people want the problem to go away by changing their manager, or moving me from this role to that role. They're not things that can be easily facilitated or supported in the Department and that's because of previous history where it's been proven not to be appropriate or helpful to manage in that way. So the issue of managing grievances and issues and challenges on a day to day basis was seen as being the most appropriate way to resolve issues then and there, hopefully coming to a resolution and move forward.

249 Ms Boulos characterised the plaintiff's issues as a 'chronic problem' rather than an 'acute problem', pointing to the fact that the plaintiff continued to turn up to work as indicating that she was managing and coping with the day to day challenges as they arose. This provides some explanation for her lack of support for the plaintiff in changing teams, despite acceptance of the serious risk of injury to the plaintiff.

250 Ms Boulos described her view about the plaintiff's welfare needs in September 2008, at the time she was leaving the Department, as follows:

COUNSEL: In terms of your involvement over that period of time was there anything further or different that you had recommended in terms of how that ongoing problem was managed? --- I mean, I think in my email [of 3 September 2008] there was obviously this secondment that had taken place. The vocational problem with a rehab provider that was recommended, plus the regular check-ins with - and sometimes just being on the ground and being available is enough for some people. That's really all I felt that needed to happen at that point in time.

251 As subsequent events made clear, Ms Boulos was incorrect in this assessment. The plaintiff's mental state was progressively deteriorating and was nearing crisis point in September 2008. She was not coping and was nearing the point of breakdown. This passage of evidence confirmed my view that Ms Boulos was, with the benefit of hindsight, reconstructing events to improve the appearance of her involvement with the plaintiff on behalf of the Work Health Unit, but hindsight is not necessary to expose the equivocation in Ms Boulos' position. At the time, in her email of 3 September 2008, Ms Boulos recognised the plaintiff's 'extreme vulnerability', her risk factors and, concluding that continuing exposure to stressors at work can lead a person to breakdown, Ms Boulos was warning against what in fact ultimately occurred. It was not suggested that these insights suddenly dawned on Ms Boulos when she was thinking about the hand-over of the plaintiff's case on her departure. They would have been obvious to a reasonable person in her position from at least April 2008.

252 I am satisfied that Ms Boulos was mistaken in her assertion that changing teams was not an appropriate response. A prudent operator in the Work Health Unit, particularly one with a psychologist's training would reasonably have foreseen and advised some form of action to change the supervision structure for the plaintiff.

253 Ms West agreed that at around the time that Ms Boulos sent the handover email, given its contents, the issue of moving the plaintiff to the supervision of another team leader could have been revisited as the decline in the plaintiff's mental state was obvious by that point. Ms Skerry suggested that if Ms Boulos had given advice regarding a course of action for the plaintiff her supervisors certainly would have taken it seriously and would have acted upon it. Her recollection was that Ms Boulos' advice was the opposite - that moving teams would really not have helped the situation.

254 The proper response of a reasonable employer was explained by Dr Webster and is set out above. The responses of both Ms West and Ms Thompson fell short of this standard for the reasons I have given. In this way, the Department breached its duty of care. It was for that reason that its response, best encapsulated in Ms Thompson's suggestion that the two women should be left to work it out 'as professionals' was misconceived. The result was that the plaintiff was forced to internalise her distress and do her best to keep working in an increasingly untenable situation.

255 I am satisfied that moving the plaintiff to a different team, namely that supervised by Mr Bowers, was an available and appropriate response that could have readily been adopted by Ms Thompson at least six months earlier, that is, in or around April 2008, than it ultimately belatedly was. It is probable that such a move would have significantly reduced the stressors affecting the plaintiff's health. As it was, the belated decision caused a sudden release of pressure and a consequent letdown in the plaintiff's psychological defences that precipitated her breakdown.

256 When a Department employee made a complaint - that they were being bullied or of interpersonal conflict with another worker - the appropriate process was to lodge a formal incident report ('DINMA'). Ms Boulos explained that such incidents would then come directly to the Health and Wellbeing team, which sat beside but was different to her team (the Injury Management team). Following some unexplained process of review, a complaint could then be referred to Human Resources, with responsibility for any investigation sitting predominantly with that team. Investigation of bullying incidents was not directly part of Ms Boulos' role. This process was seen to operate when a DINMA was lodged by the plaintiff after her breakdown with the assistance of her union representative.

257 Any direct involvement in the plaintiff's case by the Department's Human Resources personnel was only apparent in emails to senior manager Amelia Van Lint in 2006, prior to the claim period, advising how to handle a particular situation, and there appears to have been no further investigation or involvement on their part. I have noted that while Ms Boulos' email of 3 September was sent to a member of the Human Resources team there does not appear to have been any response. Although their role was played out at an arm's length, that further involvement never occurred and the responsibility for managing the escalating interpersonal conflict between the plaintiff and Ms Skerry fell to the direct managers involved and the Work Health Unit.

258 Importantly, the process was flawed since prior to a DINMA report going to Human Resources, it needed to be signed off by the relevant line manager. This meant that a complainant knew that it was Department policy, evidenced by the pro forma DINMA document, that the report about difficulties in a relationship with their line manager would be required go to that same line manager for sign off. Ms Boulos stated that, despite what was apparent from the DINMA, it was not necessarily prescriptive and was not always followed. I do not accept that as an adequate explanation that elevates the process to being reasonable on an objective assessment.

259 Moreover, it is plain that the plaintiff was always confined to complain to either Ms Skerry or Ms West and the Department validated their role as responders to any complaint the plaintiff made. Objectively assessed, it was unreasonable to require the plaintiff to participate in such a process. Ms Boulos' handover email evidences that Ms Skerry was not seen by her as part of the problem, but rather, she was seen as part of the solution. The following evidence given by Ms Boulos was instructive:

COUNSEL: You say at the end of the email [referring to the email dated 3 September 2008], Ms [Boulos], if you have a look at it there, "Happy to discuss further, but I'm sure Robyn can fill you in on the rest of the information". Was Robyn really the best person, given that she'd had some conflict with Gaye over some time to be filling in the higher management people as to the management of this employee? --- Well, I guess at that time I felt the person who was closest to the situation was Robyn.

But, she's also the person who has been in significant conflict - that's my word, significant? --- Yeah.

You may not have said that with Gaye Wearne over certainly the months of 08? --- I guess my view was whilst there was conflict and issues they had gone on for so long that it had almost appeared that issues would arise. They would be addressed or managed to a certain point and then other issues would arise. So there was never an indication that Robyn was going to step out of that picture and a new manager would be replacing her. A new team leader. So Robyn remained the consistent person involved in the management of Gaye and management of those issues, essentially.

But, that doesn't mean she was the appropriate person to be the team leader of Gaye Wearne, does it? --- That's not my job or role to say whether she's appropriate or not. But, she was the manager at the time.

260 A reasonable employer's proper response would have been, as explained by Dr Webster, to have referred the issue of management of the conflict between the plaintiff and Ms Skerry to Human Resources, irrespective of the absence of a DINMA. The response of both Ms West and Ms Thompson fell short of this standard for the reasons I have set out. In this way, the Department breached its duty of care. Further, objectively assessed, given the lack of any reasonable justification for the decision to allow the two women to sort it out as professionals, I am satisfied that the Department's response, had it been appropriately handled, was likely to have been one that significantly reduced the stressors affecting the plaintiff's health about six months prior to her break down.

261 Ms West explained the Department's processes for dealing with a worker experiencing performance management issues. A formal performance management approach involved an action plan outlining what the worker would do, and additional supervision, training, and other supports to be provided such as a mentor. The action plan would be reviewed after three months to assess what changes had occurred, whether an extension of the plan was needed or whether any disciplinary action would be taken. In acknowledgment of the plaintiff's reported ongoing health issues, Ms West took a 'supportive developmental' rather than a 'formal performance management' approach. Ms Thompson oversaw an informal plan operating between those who were concerned with the plaintiff's supervision.

262 The Department recognised its error. Ms West identified a handwritten note that she attributed to Ms Thompson on a memo that the latter had prepared in early 2009 that stated: 'Our mistake was in not taking a formal performance management approach on [the plaintiff's] first return to Youth Justice', that is, in early 2007.

263 Objectively assessed, the Department needed to grapple with the interaction between the need for performance management and the need for support for an unwell worker. The plaintiff was not a perfect employee, and ameliorating the factors that impacted on her mental health required particular attention to the process of performance management. Ultimately, the plaintiff's performance was clearly affected by Ms Skerry's supervision of her. It would have been impossible to implement any kind of effective performance management of the plaintiff while paying due regard to the acknowledged risk of injury without assigning that supervisory role to somebody else.

264 I am satisfied that it is probable that the Department, through managers in Human Resources and not those directly involved, being Ms West and Ms Thompson, would, acting reasonably, have appreciated that the risk of psychological injury to the plaintiff as a result of continuing friction with Ms Skerry required that she be managed by others, probably by April 2008 and certainly by 3 September 2008.

265 In summary, I am satisfied that the defendant, by at least April 2008 and certainly by September 2008 breached its duty of care in that a reasonable employer in the position of the Department would have taken one or more of the following actions:

(a) Undertaken a formal investigation into the circumstances which had given rise to the friction between the plaintiff and Ms Skerry;

(b) Formally counselled the plaintiff and Ms Skerry about their behaviour towards each other with the aim of endeavouring to resolve the friction (particularly centred on the perceived lack of support in connection with the plaintiff's attempt to belatedly achieve a CPW-3 upgrade);

(c) Ms Skerry should have been specifically directed or trained as to how to deal with the plaintiff's mental health concerns and, as her supervisor, should have been directed or trained to adopt a caring and supportive approach to supervision of the plaintiff expressly to ameliorate the acknowledged risk of psychological injury and to avoid any frustration with the plaintiff arising from her approach to her duties and the supervision of them;

(d) Put in place a formal early intervention plan for occupational stress, to be overseen by a suitable designated officer of the defendant, similar to the plan which was put in place upon the initial return of the plaintiff to the Preston office in early 2005;

(e) Arranged for formal mediation of problems between the two women with the aim of endeavouring to resolve the conflict; and

(f) Moved the plaintiff to the supervision of a different team leader.

266 The content of the duty necessarily turns on the specific facts of each particular case. Every workplace has different constraints on its ability to take positive action, such as, for example, moving a staff member to the supervision of another team leader. The team leaders in September 2008 other than Ms Skerry were Alicia Zineder and Richard Bowers. Although Ms Zineder was said to have been inexperienced for the task of supervising the plaintiff, the evidence did not permit me to reach that conclusion. More particularly, nothing in the evidence demonstrated that it would not have been appropriate to place the plaintiff under the supervision of Richard Bowers as was ultimately done, belatedly, in early November 2008.

267 Ms West confirmed that had she been in Ms Thompson's shoes, she would have re-visited the decision made in April 2008 to leave the plaintiff where she was. She agreed that by early September it was obvious that everything that had been tried had not worked and a new solution was urgently needed. She confirmed that a formal 'performance management' disciplinary approach was 'absolutely contra indicated'.

268 I am satisfied that between July and early September 2008, into the teeth of the plaintiff's repeatedly expressed concerns, a reasonable employer would not have allowed the resolution or amelioration of the work-based stressors affecting the plaintiff to drift on unresolved. This drift caused exacerbation of the unacceptable effect of the work-based stressors on the plaintiff. The plaintiff's extreme vulnerability was acknowledged in early September 2008, when a reasonable employer in the position of the defendant would have taken urgent action to reduce the impact of those stressors on the plaintiff.

269 The most significant stressor was the plaintiff's deteriorating relationship with Ms Skerry and the recognised danger it presented. By this point it was clear that 'the work it out like professionals' approach had been an abject failure and that moving the plaintiff to another team was urgent and essential for the plaintiff to avoid the breakdown that was being predicted by her employers.

270 The flawed reasoning in the justification for the decision not to move the plaintiff to a new team during 2008 was evident in Ms West's notes of supervision of Ms Skerry dated 11 November 2008. She recorded that the plaintiff was finally moved to Richard Bower's team:

... in response to Gaye expressing ongoing concerns with relation to her perception that Robyn was contributing to her anxieties and hence her inability to perform her work appropriately ...

Discussions had taken place between NWYJ management (myself, Jasmine, Robyn and HR - and Gaye) about the pros and cons of moving Gaye to another team. However, this was an option that was considered a last resort for a number of reasons, but notwithstanding the key rationale being that this could be interpreted as either Robyn and/or Gaye not coping and that there would be benefits in both working through the issue rather than shifting the issue.

271 Alternatively, if reassignment to a new team was impractical for any reason, then a specialist position as proposed by Dr Webster, or a re-assignment to the defendant's head office in a project role (such as had been proposed as an alternative to the Preston office at the time of the plaintiff's transfer there in early 2005) could have been considered. I infer that such options, which Dr Webster suggested were well within the opportunities available in a large organisation such as the defendant, were reasonably available. There was no evidence that might have supported the contrary proposition.

Alternative position/conditions of employment

272 Bearing in mind Ms Thompson's report to Mr McDonald on 15 February 2007,[27] a reasonable and prudent employer in the position of the Department would have appreciated the need to resolve the suitability of the workplace to avoid injury to the plaintiff's mental health by no later than mid-2007. That did not occur, notwithstanding that the annual performance and development reports that went to management, including, I infer, to Ms Thompson and Mr McDonald, did not indicate that the problem was resolved.[28]

273 The Department recognised that it needed to consider these options but its efforts fell away when application was critically needed. Its actions in this respect were largely confined prior to the claim period when, firstly, initially there was counselling arranged for the plaintiff following the Sunshine office incident that carried over into her time at Preston. Why that counselling ceased and why other counselling was not later renewed was not satisfactorily explained by the defendant. At its highest, the Department suggested that the plaintiff did not want to continue with counselling, but given what the Department knew about the plaintiff and the risks for her mental health this explanation is unconvincing. It was not suggested to the plaintiff in evidence that she unreasonably refused counselling that was on offer to her and that would have provided her with material assistance.

274 Secondly, Ms Boulos did pursue alternative employment in two ways. She arranged the secondment to the Refugee Minor program and she engaged a consultant, a Ms Costantino, to assist the plaintiff to locate alternative employment opportunities. Although the latter process seemed to have fallen away for unexplained reasons, the secondment to the Refugee Minor program was clearly very successful and pointed to a solution to the plaintiff's mental vulnerability in employment. The plaintiff's experience in that program demonstrated that temporary relief from the stressors affecting her within the Preston Youth Justice Unit was not an effective solution but that alternative employment could be. So much was clearly acknowledged by Ms Thompson in February 2007 when the plaintiff returned from the secondment.

275 However, no further effort was made to move the plaintiff to a different, more suitable position during the claim period. It seems that once the plaintiff failed to obtain a permanent position in that program the notion of an alternative position outside of the Preston Youth Justice Unit simply fell away. Why that was so was not explained. Although there is a reference in June 2008 in notes of Ms West's supervision of Ms Skerry to the plaintiff being offered career vocational counselling, the evidence did not reveal what became of this suggestion. In any event, a more proactive response than that 'offer' would have been required for the Department to have discharged its duty. What the Department was doing in 2005-2006 provides an example of a prudent response in this regard.

276 I am satisfied that in this respect the Department, particularly through the conduct of the Work Health Unit and the plaintiff's immediate supervisors, did not discharge the standard of care expected of a prudent employer in the circumstances and was in breach of its duty of care.

277 The related notion that the plaintiff could be assisted by reduced working hours and periods of leave was identified during the claim period. I accept that the plaintiff was encouraged to take her leave, and when appropriate, sick leave, and that she did so. Notably, the plaintiff reported feeling better after periods of leave at supervision meetings. More significantly, Ms West did explore the idea of implementing reduced working hours for the plaintiff's benefit when the notion was raised by the plaintiff.

278 In August 2008, the plaintiff stated that she was thinking of reducing her work to four days per week. In September 2008, that suggestion was renewed. At that time, the plaintiff also stated that she did not wish to undertake counselling or training, suggesting that she thought neither would help. This makes plain that there was no proactive plan to develop a tailored program of counselling and training for the plaintiff. It is unsurprising that an unwell person, as the plaintiff then was, would respond in that way to a generic offer. However, Ms West picked up on the prospect of the plaintiff reducing her hours and asked the plaintiff to obtain a letter from her GP. Although this was an appropriate response for a prudent employer, it was too little too late. It was not until October 2008 that the request was made and the plaintiff presented the letter to Ms West on 27 October. That issue was progressing but unresolved when the plaintiff broke down and ceased to work in early November.

279 The particular issues in this regard were whether the Department acted reasonably as a prudent employer in providing appropriate counselling, training and education for the plaintiff, on the one hand, in connection with both the discharge of her employment functions and in connection with management of her work stressors. On the other hand, there is no evidence that Ms Skerry and Ms West had any special skills, training or experience in managing the perceived risk of injury to the plaintiff's health presented by her employment during the claim period when they were responsible for her supervision.

280 I have already commented on the issue of counselling, training and education for the plaintiff. The Department recognised the desirability of counselling for the plaintiff in connection with management of work stressors and training and education for the plaintiff in respect of the structural changes in the duties of the job that came with CRIS and other innovations from about 2005. There is documentary evidence of suggestions that the plaintiff undertake education and training, and be mentored in procedure, being made on multiple occasions, offers that never appear to have been taken up. Why that was so was not fully revealed by the evidence. It was suggested that the plaintiff missed training sessions because she was on leave and that she suggested that education and training was either unhelpful or unnecessary.

281 I am not persuaded that, in connection with counselling, training, and education for the plaintiff, the Department failed to act as a reasonable and prudent employer and I do not find breach of its duty of care in this respect.

282 However, the question of counselling, training, and education for those supervising the plaintiff seems, in hindsight, to have been an obvious omission on the part of the Department. There is no evidence that, having recognised the particular risk and that supervision, or feedback, was an aspect of the plaintiff's employment that aggravated her stressors, the Department paid any, or any proper, attention to ensuring that in those known circumstances she was appropriately supervised. Moreover, there was no specific evidence of the training, skill or experience of Ms West and Ms Skerry in managing an employee who presented significant complexities for supervision and management as the plaintiff did. Although the issue is raised by the plaintiff's particulars of negligence, it was not explored by the plaintiff at trial. I make no finding that the defendant was negligent in this respect and say no more about this issue.

283 The next issue is whether the Department's breach of duty as I have found it was a cause of the plaintiff's psychiatric injury.[29] The evidence as a whole must establish on the balance of probabilities that the Department's breach of its duty to the plaintiff was a cause of her psychiatric injury.[30]

284 Several factors contributed to the deterioration in the plaintiff's mental health as it grew progressively worse through 2008. The plaintiff broke down because of the cumulative effect of stress and anxiety in the context of her employment, particularly because of Ms Skerry's management style. I am satisfied that the sustained exposure of the plaintiff in the workplace to an escalating interpersonal conflict with her supervisor in large part caused her injury and her present symptoms.

285 If the Department had acted reasonably in the ways that I have set out, by moving the plaintiff to another team, or another position of employment with the defendant, or changed her conditions of employment, possibly in mid-2007, particularly by April 2008, or alternatively, September 2008, it is probable that the general supervision of the plaintiff and many of the incidents discussed above would have been handled differently. In particular, the caravan accommodation and two brothers incidents during the last six months of her employment would probably have been avoided.

286 As I noted when discussing breach incidents, the plaintiff would have been subject to considerably less stress and anxiety during the last 10 to 18 months of her employment, and would have been relieved of the build-up of pressure that in fact occurred had the Department acted as a prudent employer that knew, as it did, of the risks for the plaintiff's health if it did not act reasonably. She would have avoided breaking down in November 2008 once she was suddenly released from the prospect of Ms Skerry's continuing supervision, having struggled for so long to achieve that end, because a prudent employer would have been implementing responsive measures, as I have discussed, over the preceding 10 months, alternatively 6 months, or alternatively from September 2008. Even in the circumstance of the last alternative, I am satisfied that urgent action if taken in September 2008 could have avoided the plaintiff's breakdown.

287 I conclude that, but for the defendant's failure to take the reasonable action that I have found to constitute the breaches of its duty of care to the plaintiff, the plaintiff would not have suffered a breakdown in early November 2008.

288 The plaintiff is entitled to damages flowing from these breaches and I now turn to the question of quantum.

289 The plaintiff, who was born on 19 January 1954, was raised in Melbourne. She completed Year 10 at Strathmore High School. She subsequently obtained employment as a typist and telephonist for an insurance company in Melbourne for a period of three years. Following this, she completed child-care work for a short period, before moving to Mildura to work in various occupations including fruit picking and car detailing for a period of five years.

290 Upon travelling overseas to Greece, she met her American born future husband and they married when she was 27. The plaintiff moved to New York for a period of five years, where her two children, Callum and Alexandra, were born. In 1986, the family relocated to Melbourne and the plaintiff remained at home with their children, intermittently engaging in part-time domestic house cleaning. She divorced in the early 1990s, but remained on relatively good terms with her ex-husband, who continued to financially support their children.

291 Following this, the plaintiff began to volunteer as a probation officer supervising young offenders in the criminal justice system. In August 1992, the plaintiff was offered paid employment as a youth justice worker in Maribyrnong with the Department. The plaintiff completed a Certificate IV qualification at the Footscray TAFE College in or around 1992 or 1993. She initially worked part-time as a youth justice worker, later working full-time.

292 Prior to 1993, the plaintiff had never been treated for any psychiatric injury or psychological condition. She was sociable, confident and a keen dog lover. Her former step-daughter, with whom the plaintiff lived when the step-daughter was between the ages of 8 to almost 16, described her as being 'a real go-getter', who loved and had a real zest for life. She recalled memories of the plaintiff encouraging and organising various gatherings of family and friends at their house, of the plaintiff attending many sporting events to watch her or the plaintiff's son or daughter, and of outings to the movies.

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

293 Dr Ng had been the plaintiff's general practitioner for over 30 years. In or around 1993, shortly after commencing work for the Department, she consulted Dr Ng following a depressive episode, complaining of feeling pressure in the workplace: 'I had been pushing myself too hard at work'. Dr Ng prescribed Zoloft, an antidepressant, for the plaintiff. Following this consultation, she was absent from work on sick leave for approximately two weeks.

294 In 1996 the plaintiff saw Dr Ng during an episode of depression and medication was prescribed. The doctor thought this episode was likely to be related to menopause. In late 1996 she again consulted Dr Ng with depression and anxiety related to her work as a youth justice worker and the stressors that her work imposed upon her. She reported that the dose of Zoloft she was taking at that time was no longer as helpful as it had previously been. She remained on Zoloft for some years thereafter, with the dose gradually reduced until that prescription ceased by the end of 2000. Dr Ng agreed that from 1996 to 2000 work related stress was a continuing feature of the plaintiff's presentation with depression. From that time, she remained on no anti-depressant medication until September 2005.

295 On 5 September 2005, the plaintiff reported to Dr Ng that, following her recent transfer to Preston she continued to feel weighed down by her negative and stressful experiences at the Sunshine office. Dr Ng recommenced the plaintiff's prescription of Zoloft. The plaintiff represented to Dr Ng on 10 October 2005 in relation to other stressors in her life, her ex-husband having being diagnosed with leukaemia and her son divorcing after a marriage of 18 months. Dr Ng increased the plaintiff's dosage of Zoloft.

296 In November 2005 the plaintiff reported in an email to Ms Chen:

I am very happy at [the Preston] office and well supported, however, there are many ongoing issues in relation to the merge of the North and West region and I find myself emotionally fragile and suffering anxiety. I identified that I need assistance in trying to move on from these issues as it continues to impact on my current situation.

297 On 5 December 2005, the plaintiff described to Dr Ng feeling stress and anxiety from work. Dr Ng prescribed the plaintiff with Zoloft. The plaintiff again presented to Dr Ng on 15 March 2006, with anxiety and feeling overwhelmed at work. Zoloft was again prescribed.

298 On 11 May 2006, the plaintiff filed a DINMA report relating to 'stress' arising out of 'workplace issues'. This arose from learning that employees at the Sunshine office had had their positions re-classified to the CPW-3 level, and the grievance process that she commenced after failing to apply for that promotion. On 16 June 2006, Dr Ng recorded that the plaintiff had been finding work very stressful that year, but that things had settled and she was looking forward to upcoming long service leave in the US. Upon her return from leave in September 2006 she reported to Dr Ng that she had been in tears at the prospect of returning to work, had communicated this to Ms Chen and was looking for alternatives.

299 On 30 April 2007, Dr Ng recorded that the plaintiff was feeling stable, but that she hated her job and was looking to 'get out'. The plaintiff subsequently took leave in May 2007 in relation to the terminal illnesses of family members. On 30 May 2007, Dr Ng reported that the plaintiff was concentrating on personal issues, that work had been supportive with allowing her to take some time off and depression was the principal reason for her consultation with him on this occasion. Dr Ng increased the plaintiff's dosage of Zoloft. She again took sick leave for the period 15 June 2007 to 20 June 2007.

300 Due to gall bladder surgery and complications arising from infection, the plaintiff took further sick leave from 13 August 2007 to 19 October 2007.

301 On 26 November 2007, the plaintiff's ex-husband passed away. Shortly after, her former mother in law, who she had remained close to, also passed away. On 28 November 2007, Dr Ng saw the plaintiff, at which time the death of her ex-husband was discussed and the improvement in respect of her health following surgery and infection was noted. Dr Ng again prescribed the plaintiff with Zoloft.

302 On 25 February 2008, the plaintiff reported to the defendant that she was experiencing panic attacks, which she attributed to the unsuccessful CPW-3 promotion process. During the course of 2008 the plaintiff took recreation leave between 28 March to 7 April, 31 May to 22 June, and 20 October to 24 October. From 7 November 2008, she was on sick leave and did not return to work after that date.

303 On 26 May 2008, Dr Ng recorded increased anxiety about work, and that the plaintiff was 'looking for alternative work because the type of work she does is putting a lot of emotional strain on her'.

304 On 27 October 2008, Dr Ng recorded that the plaintiff was experiencing increased anxiety and was dreading going to work. At the plaintiff's request, Dr Ng wrote the following letter to the defendant: '[The plaintiff] is suffering from anxiety and is being treated for this. It would be best if her duties and hours at work can be reviewed with the view of reducing her stressors'.

305 After the plaintiff left the workplace, and on four occasions through to 30 January 2009, she reported to Dr Ng that she could not cope at work, had been breaking down crying, and that she had developed low self-esteem about her ability to perform at work, felt overwhelmed by basic tasks, disorganised, became teary when talking about her work situation and was suffering from sleep disturbance. The plaintiff thought she could not return to work.

306 On 2 February 2009, the plaintiff lodged a DINMA report for 'stress/anxiety, bullying/harassment, emotional psychological [injury]' arising from the events occurring at work throughout 2008.

307 Dr Grant, a psychiatrist, provided a report to the defendant dated 18 February 2009. Dr Grant diagnosed the plaintiff as suffering from an exacerbation or recurrence of major depressive disorder, moderately severe, non-psychotic type with features of panic disorder and agoraphobia. At this time, Dr Grant opined that with rigorous treatment the plaintiff should make a full recovery, but that she otherwise appeared to have no work capacity for pre-injury or any alternative duties.

308 On 30 March 2009, Dr Ng reported that 'although [the plaintiff] has suffered from a level of background anxiety and depression for many years I have never seen her in this state ... the relationship between this condition and her employment is obvious'. It was not possible to state when she could return to work, but there was hope that with support in a suitable position she could be rehabilitated.

309 Dr Grant further reported on 7 May 2009 that he believed the plaintiff had a work-related condition, but considered that 'as part of her evolving depression, her cognition/information processing has deteriorated and hampered her work capacity'.

310 On Dr Ng's referral, the plaintiff consulted Ms Linda Roglic, a psychologist, on 15 July 2009. Ms Roglic diagnosed the plaintiff as suffering from stress syndrome, commenting that her primary symptoms of hyper-vigilance, hyper-anxiety and hyper-avoidance were borne from her workplace experience and generalised to facets of life beyond the workplace.

311 The plaintiff attended approximately 39 sessions with Ms Roglic between July 2009 and November 2012. The purpose of these sessions was for the plaintiff to develop psychological strategies and skills to overcome the barriers she described to socialising and caring for and organising herself, to strengthen her confidence, develop and improve her insight and determine direction for future planning.

312 On Dr Ng's referral, the plaintiff also consulted Dr Datta, a psychiatrist. On 31 July 2009, Dr Datta reported the plaintiff's history and opined that the plaintiff had 'slipped into an episode of mixed anxiety and depression, possibly an exacerbation of a generalised anxiety disorder with some depressive symptoms ... she has since then had an episode of major depression, which seems to be in partial remission at this stage'. He noted that the bullying the plaintiff complained of had occurred at a difficult time for her, coinciding with the illnesses of her ex-husband and other family members. She was grieving the loss of her mother who had recently passed away.

313 Dr Datta later reported, in November 2009, that the plaintiff had 'gradually improved in the management of her depressive syndrome' and that he believed the plaintiff could gradually begin a return to work program, beginning in January 2010, starting with two half days per week in the Melbourne office. He recorded that while apprehensive, the plaintiff appeared to realise this would be the best outcome for her in the long term.

314 On 5 February 2010, Dr Ng reported that the plaintiff was having panic attacks when contemplating returning to work.

315 On 28 October 2010, Dr Ng again referred the plaintiff to Dr Datta. Dr Datta described the plaintiff as increasingly panicked and daunted by the idea of applying for and returning to employment. He felt that she was unable to handle any pressure, but that her prognosis was overall better.

316 On 21 February 2011, Dr Datta reported that the plaintiff's general diagnosis was 'an adjustment disorder with depressed mood, with considerable anxiety and apprehension in being able to return to work in a setting similar to what she was employed in'.

317 In January 2011, the plaintiff visited family members in Newcastle. In February 2011, the plaintiff commenced volunteer work with Pet Rescue, fostering abandoned dogs. In May 2001, she volunteered to foster a three year old child. In October 2011, the plaintiff took a three-week trip to India with her son to visit a friend she had met online.

318 On 4 April 2011, Dr Ng reported that the plaintiff required ongoing psychological support and would not be able to return to her former role, and probably would never be able to return to work in an hierarchical office set up.

319 On 10 June 2011, Ms Roglic reported that the plaintiff's key symptoms continued to be hyper-vigilance, hyper-anxiety and hyper-avoidance, consistent with a diagnosis of stress disorder. Ms Roglic noted that the plaintiff had 'progressed significantly' since her initial consultation in July 2009, with greater motivation and improved mood, but continued to suffer from acute bouts of anxiety.

320 On 12 September 2012, Ms Roglic reported that the plaintiff's condition had significantly improved and was now consistent with a diagnosis of adjustment disorder. The plaintiff presented as more relaxed, more comfortable with everyday life, with some sense of self-determination, but continued to experience symptoms of acute anxiety. Ms Roglic opined that the plaintiff would be unable to return to full time employment in the future and, at best, could become 'engaged in some part time role where she is able to operate independently at her own pace'.

321 On 25 September 2012, the plaintiff's solicitors referred her to psychiatrist, Professor Lorraine Dennerstein for a medico-legal assessment. Professor Dennerstein's diagnosis was that the plaintiff was suffering from an exacerbation of chronic adjustment disorder with mixed anxiety and depressed mood. She also opined that it was likely that at some stages this was severe enough to meet criteria for a major depressive disorder. She noted that the episode at the Preston office represented an exacerbation from previous levels of stress suffered while working for the same employer in a different office (Sunshine). She reported that the plaintiff's employment was a significant contributing factor to the plaintiff's injuries and that it was unlikely that she would be able to return to suitable employment in future.

322 In February 2013, the plaintiff took a two-week cruise with her son and granddaughters.

323 In March 2013, Dr Datta changed her prescribed antidepressant to Pristiq, with an increased dose.

324 Professor Dennerstein provided a further report in January 2014, noting that there had been considerable improvement in the plaintiff's mood since the prior consultation in November 2012, but that anxiety remained a pervasive issue.

325 Dr Grant further reported in April 2014, confirming his previous diagnosis of the plaintiff. He commented:

It is my contention that the depressive condition was, and remains, under-treated and has never been fully addressed in treatment over the last five years, although her symptoms have ameliorated to the point of a partial remission.

326 Dr Grant opined that the plaintiff's current treatment regime was inadequate and that her psychiatrist should undertake a more vigorous medication treatment regime. He noted that she appeared to have no capacity for pre-injury or alternative duties with her pre-injury employer, but that her current activities and symptom level suggests that she does have some capacity for work, on a part-time basis with a new employer. Dr Grant restated his view in October 2015.

327 In June 2014, the plaintiff reported to Dr Ng that she was feeling stressed by a conflict with the lady who ran the Pet Rescue group with which she continued to volunteer her time.

328 In November 2014, the plaintiff attended her daughter's wedding. Dr Datta reported on 15 January 2016 that this did not cause the plaintiff any anxiety. Dr Datta has supervised the plaintiff medication regime to date, prescribing various antidepressants of differing dosages to manage and respond to the plaintiff's varying symptoms.

329 Professor Dennerstein provided a further report dated 23 October 2015, that confirmed her diagnosis from September 2012, that the plaintiff continues to suffer from chronic adjustment disorder with mixed anxiety and depressed mood, but that the plaintiff's condition is in partial remission with treatment, with residual features. Professor Dennerstein commented that the plaintiff's symptoms had stabilised and were likely to continue for the foreseeable future. She saw Dr Grant's opinion but was not persuaded to change her view or agree that the plaintiff's treatment was sub-optimal.

330 Prior to the incidents with Ms Skerry, the plaintiff described herself as an outgoing, socially active person with close relationships with her children, grandchildren and former step-daughter. She had been a happy and confident person. The plaintiff loved her role as a youth justice worker and she spoke of how she derived an immense sense of satisfaction from being able to assist and make a positive difference to the lives of her juvenile clients.

331 The plaintiff's enjoyment of life significantly diminished post November 2008. She no longer enjoys socialising and finds it difficult to be amongst crowds of people. She struggles getting up every day and finds herself increasingly isolated, preferring her own company. She has more limited contact with her family and friends, tending to give excuses to avoid social contact. She struggles with routine domestic activities. She often becomes anxious and upset. She has limited activity outside her home. Shopping trips or visits to family leave her feeling exhausted and have reduced in frequency over time.

332 The plaintiff continues to suffer from panic attacks and episodes of hyperventilation. She describes feeling unable to attend most social occasions, and that she often cancels on those occasions that she does commit to. She describes continuing to suffer from short-term memory issues and difficulties with concentration. She feels unable to plan and organise significant events, such as holidays, and is wholly dependent upon her children in this respect. She also struggles with tasks that require a high level of responsibility and must be completed in accordance with a schedule. She feels that she cannot lead a normal life.

333 The plaintiff continues to derive satisfaction from caring for dogs, spending time with her children and grandchildren, interacting with people via the Internet (on such platforms as Linkedin and Facebook), gardening and reading. She is also able to drive a car and do her own shopping, but she does not enjoy routinely cooking, and prefers consuming pre-packaged food. She has, to an extent, been able to maintain relationships with a small number of friends. She is also able to take holidays when planned by her son.

334 The plaintiff did previously enjoy composing her own blog, 'Gay's Health Pets and Healthy People', for a short period until she felt the task overwhelmed her. She was also able to attend a function held by the World Parliament of Religion in December 2009, assisting with the distribution of information, but felt unable to return to this task on the third day.

335 The plaintiff's former step-daughter and work colleague, Ms Tschujasehenko, described the plaintiff as having loved her employment with the defendant while they were working there for a time together prior to the claim period. Following Ms Tschujasehenko resigning from her employment with the defendant she moved to New Zealand, where the plaintiff visited her during her long service leave in 2006. This was when Ms Tschujasehenko first noticed that the plaintiff was not her normal self.

336 Ms Tschujasehenko, upon returning to live in Australia, observed that the plaintiff became increasingly anxious in or around March 2008. She noted that the plaintiff would question who was expected to be in attendance at social gatherings and was worried about what she should wear. Ms Tschujasehenko commented that the plaintiff prior to this time would not have become agitated or anxious about such matters.

337 In November 2008, Ms Tschujasehenko visited the plaintiff at her home. She recalled that the plaintiff was visibly upset, and that the normally neat and tidy house was in a state of disarray, with dishes accumulated in the kitchen sink. Ms Tschujasehenko gave evidence that from this time onwards the plaintiff increasing isolated herself from family and friends, would cancel commitments, would rarely leave her house, and sought comfort mainly from her dogs.

338 Ms Tschujasehenko remarked that the plaintiff, in more recent times, appears to be incrementally getting better, that she does not require as much convincing to attend social gatherings, but that progress is slow.

339 Ms Hickey has maintained a friendship with the plaintiff for about 40 years.

340 Ms Hickey stated that the plaintiff was 'friendly, easy going, fun, social' and that she enjoyed her work in the early years. Ms Hickey noted a change in 2008 when the plaintiff became 'a lot more anxious'.

341 Ms Vains, a former work colleague of the plaintiff, attempted to assist the plaintiff when she was experiencing difficulties with Ms Skerry by raising it with their manager, Ms West. Ms Vains recounted that she told Ms West that the plaintiff felt persecuted, bullied and isolated by Ms Skerry.

342 Ms Vains observed that over the course of employment under the supervision of Ms Skerry the plaintiff appeared to be suffering from ongoing distress, often culminating in tears at work. She also noted that following meetings with Ms Skerry the plaintiff was incredibly upset, extremely distressed and was sobbing at her desk. Ms Vains said the frequency of these outpourings was varied, but towards the end of the plaintiff's employment they became more regular. She described the plaintiff as an otherwise friendly person, who was honest and caring.

343 I am satisfied that the plaintiff suffered from a pre-existing psychiatric condition, as a result of the following contributors:

(a) the previous history of depression as noted by Dr Ng;

(b) the stress and anxiety resulting from her period of employment at the Sunshine office, which required antidepressant medication;

(c) the stress and grief associated with the death of her ex-husband, mother in law and mother in a relatively proximate period of time; and

344 Dr Datta, in his reports dated 31 July 2009 and 21 February 2011 set out the following history:

... [The plaintiff] has also had two major stressful events happen over the past few years. One of them has been the death of the father of her two children, who died on account of cancer and had to be nursed almost continuously for the last six months of his life. Gaylene was one of his close friends and helped him with his Will and in a number of other areas and she was left quite devastated at his death two years ago.

...[Her mother in law] passed away within a week or two of his death. Gaylene and her children were quite close to her as well and were left with a series of losses in a couple of weeks. She has also very recently lost her mother and is currently grieving on both counts.

She has a past history of at least two depressive episodes, the first one beginning about 16 to 17 years ago and at this stage she was treated with Zoloft for about five years. She gradually discontinued the Zoloft and was off it, but did encounter some stress at work about 5 to 6 years ago and needed to get back onto the Zoloft, on account of a stressful situation she found herself in.

In her background, she is the younger of two siblings and describes a very prominent family history of depression on her mother's side of the family. Both her maternal grandmother and her mother have had episodes of depression. Both her children have had episodes of depression which have required treatment.

345 Professor Dennerstein similarly reported the plaintiff's history.

346 As has been set out in some detail above, the plaintiff had struggled psychologically following the events at the Sunshine office.

347 There was little disagreement on the evidence about the nature of the plaintiff's psychiatric injury, or its cause being substantially work-related. I am satisfied that the plaintiff suffers from an exacerbation of a pre-existing psychological injury, chronic adjustment disorder with mixed anxiety and depressed mood. There are no physical manifestations of her psychiatric injury. The description of her illness by the professionals varied a little, but these variations are not ultimately significant.

348 Professor Dennerstein's stated her diagnosis for the plaintiff as follows:

Diagnosis, Ms Wearne's current condition and prognosis

[The plaintiff] is a 61 year old single mother of 2 and former youth justice worker. She had previous episodes of depression and was taking prescribed antidepressant Zoloft because of work related stressors in which she felt she was being bullied and intimidated by fellow workers and management at the Sunshine office, prior to transferring to the Preston office. Her symptoms increased at the Preston office. Her diagnosis is thus that of exacerbation of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. It is likely that at some stages this was severe enough to meet criteria for Major Depressive Disorder. There has been considerable improvement with her mood with change of antidepressant to Pristiq. Anxiety continues to be a major problem for her.

349 The defendant's psychiatrist, Dr Grant, stated:

Summary, Assessment and Diagnosis

Ms Wearne still appears to have an ongoing Major Depressive Disorder, moderately severe, non-psychotic type, with specific features of melancholia.

Her condition still appears to relate to the accepted workplace injury of 7.11.08 and has never entered into a period of remission since then, so I have consider her current condition to be significantly and materially work-related, even though there appears to be a significant constitutional or endogenous pattern to her symptoms.

...

With the pattern of symptoms described by Ms Wearne, one would be anticipating a significantly greater symptom relief with more vigorous, orthodox treatment ... With further medical treatment, I would be cautiously optimistic about her regaining additional work capacity and review in six to nine months after further treatment has been undertaken would be appropriate to re-assess her capacity.

350 The evidence in respect of the plaintiff's diagnosis from the injury resulting from the incidents with Ms Skerry has been noted above. As stated above, I accept that the plaintiff suffers from an exacerbation of a pre-existing psychological injury, chronic adjustment disorder with mixed anxiety and depressed mood, as a result of the defendant's negligence.

351 The plaintiff is entitled to damages for the exacerbation of her psychological condition, and not for her condition in full.

352 The defendant submitted that in many respects the plaintiff retains a reasonable quality of life, is moderately active and leads a relatively fulfilling life. She has been able to holiday within Australia with her family, and overseas to visit friends, and has maintained a varied level of volunteer activity and relationships with friends and family since ceasing to work. I accept this submission, but I do not consider that the description of her activities in this regard is inconsistent with the diagnoses of Dr Dennerstein and Dr Grant set out above and my finding as to her condition.

353 Dr Dennerstein described the plaintiff's present condition as in partial remission. Dr Dennerstein and Dr Datta, the latter who last saw the plaintiff in 2014, noted that there had been some improvement in the plaintiff's mood with a change of her antidepressant to Pristiq. The plaintiff's treatment with Dr Datta is limited to adjusting medication type and dosages. Dr Datta does not conduct regular reviews with the plaintiff.

354 The plaintiff continues to attend Dr Ng on approximately a three monthly basis for prescription of her medication. This level of treatment is similar to the level of treatment the plaintiff was having prior to the incidents with Ms Skerry, that is, attending Dr Ng every few months for a prescription of medication. It is accepted that the level of medication now is higher than it was in 2006, consistent with an exacerbation of her pre-existing condition.

355 I am satisfied that the plaintiff's future prognosis is guarded and poor and, while more vigorous treatment options may be explored with her in future, on the present evidence, there is very little chance of any material improvement. If further recovery is to be achieved at all, it will take substantial time.

356 As J Forrest J recognised in Johnston v Box Hill Institute of TAFE,[31] my finding that the plaintiff suffered an exacerbation of a pre-existing psychological injury requires that I consider the principles in Malec v J C Hutton Pty Ltd (Malec).[32] In the context of my findings generally, Malec holds that the plaintiff is entitled to damages on the basis that her psychiatric illness is the direct result of the defendant's negligence, but those damages must be reduced to take account of the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar psychiatric illness.[33] In this context, the law takes account of hypothetical situations of the past and the future effects of the pre-existing psychological injury, and the chance of future or hypothetical events occurring.

357 In Tabet v Gett,[34] Gummow ACJ said:

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

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

358 In Seltsam Pty Ltd v Ghaleb (Seltsam),[36] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:

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

(b) The court must form an estimate of the likelihood of the possibility of alleged future events occurring; and

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

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

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

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

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

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

360 I am satisfied that the plaintiff suffered a pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition). In this context, I must evaluate the possibilities that, on the hypothesis that the defendant did not negligently cause the plaintiff's present injury, the plaintiff's pre-existing psychological injury would have been exacerbated in any event by non-compensable causes leading to the result that the plaintiff would have been injured with consequent disablement to an equal or lesser extent than that which actually occurred.

361 At the outset, I note that this question was not explicitly addressed by the evidence or the submissions, in the sense of evaluating solely, and as if the aggravation had not occurred, the possible progress of the plaintiff's pre-existing psychological injury and its likely impact on her health, well-being and capacity to work.

362 That is not to say that the issue was not addressed in submissions at all, as the defendant submitted for a significant discount for vicissitudes. The defendant submitted that the plaintiff, if not injured, would have been unlikely to have continued in her employment as a youth worker, given past employment dissatisfaction and performance issues. Prior to February 2007, the plaintiff had made attempts to find other suitable employment, through one session of vocational counselling and applying for a position with the Refugee Minor Program, without success. She was also underperforming in her role and experiencing issues with memory. Furthermore, the defendant argued that the plaintiff's age and experience reduced the likelihood that she would have been able to find and secure alternative employment.

363 In Club Italia (Geelong) Inc v Ritchie[38] 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 in the order of 15% while emphasising that each case depended on its own facts. The defendant contended for a greater discount.

364 That said, in my view, a distinct analysis is required in the present case and a judge must do the best he or she can to determine an appropriate award of damages on the material adduced.[39]

365 The following considerations appear relevant. First, currently, the plaintiff:

(a) suffers anxiety and depressed mood (specific features of melancholia);

(d) suffers significant loss of enjoyment in her lifestyle; and

(e) is fixated on the way that she was treated by Ms Skerry and avoids supervision and hierarchical structures, and so has limited dealings with others.

366 Secondly, the plaintiff's psychological state was patently fragile prior to the claim period during 2005 and 2006 and she was struggling to cope with the standard duties of a youth justice worker.

367 Thirdly, other matters, including the Sunshine incident and personal factors including the health and subsequent death of her ex-husband and others close to her took a significant toll on her psychological state and were significant contributing stressors in her life. In the past, her prior injury had seen her on antidepressant medication and in receipt of workers compensation payments.

368 Fourthly, the plaintiff was actively contemplating other employment prior to the claim period.

369 In my assessment, having regard to these matters and in particular to my assessment of the plaintiff, and other witnesses, notably Ms Skerry and Ms West, when giving evidence, there is a significant possibility that the plaintiff would not have successfully adjusted to the contemporary youth justice worker role and that ongoing stressors at work and in her personal life could have triggered a breakdown had she remained at Preston, or at least in a hierarchical, supervised employment role. It is possible that the plaintiff would not have worked at Preston for much longer than she did, although the notion that she ought to find alternative employment was more than two years old.

370 I cannot be satisfied about a time frame for a possible breakdown through non-compensable causes. I cannot discount the possibility of positive change, for example, a different job with a more appropriate form of supervision such as a different team, or more effective psychiatric treatment.

371 The plaintiff demonstrated significant commitment to her employment. Although she expressed dissatisfaction and an unwillingness to return to work at Preston following the secondment to the Refugee Minor Program, she did return to employment at this time and committed to making the best of her situation on a number of occasions when her hopes for alleviation of her employment stressors were dashed. She tried alternative opportunities at the Refugee Minor Program and appeared capable of adapting to new tasks and duties. In all likelihood, she would have continued to seek out other employment opportunities. However, her prospects of securing such employment would have been moderately reduced because of her pre-existing psychological condition.

372 The prospect that the plaintiff could have been in the same psychological state as she currently is due to events other that those that constitute the defendant's breach of its duty is significant. I accept that the plaintiff, in ideal conditions, would have worked to her 66th birthday, but the possibility of disablement at an earlier point from injury caused by non-compensable factors remains significant.

373 For the reasons that I have explained, it is appropriate to apply a greater than standard discount, for vicissitudes principally due to the plaintiff's pre-existing condition. In the circumstances, the appropriate discount factor is one third.

374 In Willett v Victoria,[40] 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.

375 The majority agreed with recent observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King,[41] 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:[42]

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?

The court noted that awards of damages have markedly increased:[43]

[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".

376 The plaintiff is entitled to damages for pain and suffering and loss of enjoyment of life as a result of her psychological injury and its effects.

377 I have considered the severity of the plaintiff's psychological injury as described in the medical and lay evidence discussed above and in the plaintiff's own evidence as to the impact of her condition upon her life. Taking into account that I am assessing an exacerbation of a pre-existing condition and on the basis of the discount that I have identified as appropriate for that reason, I will award the plaintiff damages for pain and suffering and loss of enjoyment of life in the sum of $210,000.

378 From 23 March 2010 to December 2012, Dr Ng certified the plaintiff as fit for alternate duties on a part time basis. Dr Ng expressed a hope that with appropriate support and treatment the plaintiff may be able to work in some capacity in a different area under a different environment. In December 2012, Dr Ng certified that the plaintiff had no current capacity for any employment and has continued to certify that she is unfit since this time. He said: 'I can envisage that any attempts to retrain her or to try and guide her into alternative employment would be likely to exacerbate her anxiety and she is not likely to be successful'. Dr Ng considers part of the plaintiff's anxiety and reluctance to search for employment stem from the plaintiff not wishing to subject herself to scrutiny or criticism.

379 Dr Grant opined that the plaintiff does not have residual work capacity for pre-injury duties or their equivalent, but that she is presently fit for work for a new employer, at least on a part time basis initially, on the basis of the medical evidence. He believes that with more aggressive and alternative treatment, the plaintiff could regain further capacity.

380 Professor Dennerstein opined that the plaintiff had no capacity to return to her pre-injury employment and that she would be too anxious to do similar work with strangers, noting that the only people the plaintiff does not become anxious around are her children and grandchildren. Professor Dennerstein considered that the plaintiff had no capacity for suitable work.

381 Ms Roglic considered that the plaintiff may be capable of part time employment, but only in circumstances where she is able to operate independently, at her own pace.

382 I am satisfied that the plaintiff has been incapable of working at all since 7 November 2008 and will remain wholly incapacitated.

383 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 totalled $424,546, being $380,460 for lost earnings and $44,086 for lost superannuation. The plaintiff's future loss of earning capacity to age 66 was agreed at $198,472, being $179,643 in respect of earnings and $18,829 in respect of superannuation. The concept of a discount for vicissitudes is subsumed in the analysis on Malec principles and that analysis conceptually applies to both past and future pecuniary loss as well as pain and suffering damages.

384 I assess the plaintiff's pecuniary loss in the sum of $415,345.

385 I note that the parties agreed the Fox v Wood component of the damages at $61,700 and account must be given for make-up pay $8,204, which is not included in past loss of earnings.

386 I assess the plaintiff's damages in the following sums:

387 I will hear from counsel in respect of costs and invite counsel to submit a minute of the appropriate judgment to reflect these reasons.

[1] Brown v Maurice Blackburn Cashman (2013) 45 VR 22, 26 [14]; Swan v Monash Law Book Co-operative [2013] VSC 326, [150]; Johnson v Box Hill Institute of TAFE [2014] VSC 626, [211].

[2] [2013] VSC 326, [189] (citations omitted).

[3] (2013) 45 VR 22, 26 [15].

[4] [2005] HCA 14; 214 ALR 349, 353 [12].

[5] [2005] HCA 15; (2005) 222 CLR 44.

[8] [2002] HCA 35; (2001) 211 CLR 317.

[10] [2002] HCA 35; (2001) 211 CLR 317, 57 [35] (emphasis in original).

[11] [2005] NSWCA 367.

[13] [2013] VSC 58, [116].

[14] [2013] VSC 326, [162]-[163].

[15] [2015] VSCA 245.

[16] Johnston v Box Hill Institute of Tafe [2014] VSC 626, [406].

[17] [2007] HCA 20; (2007) 232 CLR 486.

[18] Ibid, 505 [57] (emphasis in original).

[19] [2007] QCA 366.

[21] (2013) 45 VR 22, .

[22] [2015] VSCA 245.

[23] [2014] VSC 626, [422]; citing Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461 [124]-[126] (Hayne J). See also Brown v Maurice Blackburn Cashman (2013) 45 VR 22, .

[24] [2014] VSC 626, [426]-[427].

[25] [2015] VSCA 245, [58]-[62].

[26] [2007] NSWCA 377; (2007) 71 NSWLR 471, 477 [20].

[27] Paragraph [45] above.

[28] Paragraph [65] above.

[29] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408.

[30] Johnson v Box Hill Institute of TAFE [2014] VSC 626, [443]; citing Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, [44]-[55], [58]-[64]; Papadopoulos v MC Labour [2009] VSC 193; (2009) 24 VR 665.

[31] [2014] VSC 626, [453], not disturbed on appeal: [2015] VSCA 245, [105].

[32] [1990] HCA 20; (1990) 169 CLR 638.

[34] [2010] HCA 12; (2010) 240 CLR 537, 557 [39].

[35] Ibid, 136, [585] (citation omitted).

[36] [2005] NSWCA 208, [103]; approved in Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197, [71]-[73].

[37] Ibid, [104]-[108] (emphasis in original; citations omitted).

[38] [2001] VSCA 180; (2001) 3 VR 447, 464 [57].

[39] New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, [88]; Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537, 585 [136].

[40] (2013) 42 VR 571.

[41] (2011) 35 VR 280.

[42] Ibid, 320-321 [177] (citations omitted).

[43] (2011) 35 VR 280, 321 [180], 322 [182] (citations omitted).