Midwest Radio Ltd v Arnold[1999] QCA 20

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 Appeal No. 4010 of 1998

Brisbane

BETWEEN:

MIDWEST RADIO LTD.

ACN 003 072 455

(Defendant) Appellant

AND:

MARILYN ABIGAIL ARNOLD

(Plaintiff) Respondent

McPherson J.A.

Williams J.

Muir J.

Judgment delivered 12 February 1999

Joint reasons for judgment of McPherson J.A. and Williams J., separate reasons of Muir J.  dissenting in part.

APPEAL ALLOWED WITH COSTS.  JUDGMENT BELOW SET ASIDE.  JUDGMENT IN FAVOUR OF THE DEFENDANT IN THE ACTION WITH COSTS, INCLUDING RESERVED COSTS, IF ANY.

CATCHWORDS: EMPLOYMENT LAW - Injury of employee - Liability of employer - Trial judge found that respondent suffered major depressive disorder caused by conduct of manager at workshop towards respondent and other employees - Whether effect reasonably foreseeable - Whether ordinary person in respondent’s circumstances would have suffered disorder - Doctor’s opinion based on all of respondent’s evidence, but not all of evidence accepted by trial judge - Quantum.

Section 9, Workplace Health and Safety Act 1989.

O.7, r.26 Supreme Court Rules.

Wilkinson v Downton [1897] 2 QB 57.

Bunyan v Jordan (1937) 57 CLR 1.

Jaensch v Coffey (1984) 155 CLR 549.

Wodrow  v Commonwealth (1993) 45 FCR 52

Gillespie v Commonwealth of Australia (1991) 104 ACTR 1.

Rogers v Brambles Australia Ltd. [1998] 1 QdR 212.

Mount Isa Mines Limited v. Peachey (CA 3072 of 1979; Dec 1, 1998).

Counsel:  Mr R.R. Douglas Q.C., with him Mr J.A. McDougall, for the appellant

Mr P.R. Dutney Q.C., with him Mr C. White, for the respondent.

Solicitors:  Quinlan, Miller & Treston for the appellant

Carswell & Co. for the respondent

Hearing Date:  5 November 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 Appeal No. 4010 of 1998

Brisbane

Before McPherson J.A.

Williams J.

Muir J.

BETWEEN:

MIDWEST RADIO LTD.

ACN 003 072 455

(Defendant) Appellant

AND:

MARILYN ABIGAIL ARNOLD

(Plaintiff) Respondent

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & WILLIAMS J.

Judgment delivered 12 February 1999

1. This is an appeal by the defendant against an award of $549,220.83 in favour of the plaintiff in an action tried in the Supreme Court. The plaintiff’s claim was based on allegations of breach by the defendant of its common law duty, in failing to ensure that she was not exposed to unnecessary risk of injury in the workplace; or under s.9 of the Workplace Health and Safety Act 1989, in failing to ensure the health and safety of the plaintiff as employee.
2. The defendant was the publisher of the Townsville Independent News, a local weekly newspaper of the kind that is commonly distributed free of charge to residents in the locality, which depends for its financial survival on income from advertising. The newspaper was prepared and published in Townsville, although the business was owned by the defendant which is apparently controlled by persons residing somewhere else in Australia. The plaintiff was first engaged by the defendant as a member of the staff of the newspaper early in March 1991. Her position was described as that of Features Co-ordinator/Sales, which required her to compile major features and supplements, to undertake special features, and to work together with the sales team to secure “a successful readable community newspaper” (ex.2). Her salary was to be a retainer of $350 per week (gross) with a weekly car allowance of $100, and a commission at rates calculated by reference to “sales”, which presumably refers to sales of advertising.
3. The plaintiff’s letter of appointment is dated 4 March 1991, and she started work then or soon after that date. She was dismissed from employment on 25 July 1991 (ex.3). The reason given in ex.3 is “continued failure to comply with management directions”. At that time the local manager of the business was a Mr Malcolm Johnson. He was himself dismissed at some time during the next few weeks, and a new manager, Mr Geoff Williams, was appointed in his place. In late August 1991, the plaintiff was re-appointed to the staff of the newspaper, this time as sales manager and features co-ordinator. She continued to be so employed until 6 December 1991, when she left the defendant’s employment because of the condition she was in. Since that date, she has not worked again. Dr Green, a specialist psychiatrist, to whom the plaintiff was referred in January 1992, and whose evidence at the trial was accepted by his Honour, diagnosed her as suffering from a major depressive disorder or illness. It was Dr Green’s opinion “that it was the situation she found herself in when working in the office of the Independent Newspaper that was the major factor in precipitating the psychiatric disorder”.
4. The “situation she found herself in” was the state of affairs that prevailed in the office of the defendant’s newspaper in Townsville under the management of Mr Geoff Williams. The plaintiff’s relations with Williams began well. On the morning of her return to work in late August 1991, he welcomed her back and apologised to her in front of the assembled staff, telling them that they were to work with and not against the plaintiff. Relations with Mr Williams seem to have continued in this mode for the first fortnight or so until difficulties began to emerge that brought about the “situation” referred to by Dr Green. Stated generally, the plaintiff’s complaint, which was found to be proved, was that, in the words of the learned trial judge, Williams “engaged in conduct ... towards the plaintiff and others on a fairly frequent basis ... that could properly be described as aggressive, bullying, abusive, belittling and sarcastic”, and which was “often expressed in or accompanied by foul language”. Elsewhere his Honour remarked that the plaintiff’s claim was primarily based upon Williams’ conduct towards her, while she also claimed to have been adversely affected by his conduct towards other members of the staff as well. As to that, his Honour said that “in a case like this, where the evidence establishes a course of conduct generally towards her and other members of the staff ... she is entitled to rely upon such incidents, even though they were not directed against her personally”. He added that if he was wrong about this, the plaintiff was still entitled to succeed because the conduct of Williams towards her, particularly at the regular weekly staff meetings, “must be regarded as a substantive cause of her psychiatric condition”.
5. On appeal, the defendant did not directly question these conclusions or some other more specific findings made by his Honour, all of which were well within his province as the tribunal of credibility and of fact at the trial. The defendant did, however, challenge the learned judge’s finding that the effect on the plaintiff of this conduct on the part of Williams was reasonably foreseeable, and that it was, or was proved to have been, the cause of the plaintiff’s condition at trial. This has the effect of requiring an examination of the evidence at trial with respect to liability, causation and, to a lesser extent, quantum that is perhaps more detailed than is warranted on appeal in cases in which the primary injury or trauma complained of by the plaintiff is physical, rather than psychiatric as it is here.
6. The plaintiff’s complaint, in its most generalised form, was and is that the defendant through the conduct of its employee Williams brought about an “atmosphere” in the workplace which caused the plaintiff’s psychiatric illness or disorder. The defendant’s submission is that, in order to decide whether such an atmosphere existed, and what its consequences were, it is first necessary to identify and establish the particular incidents that are said to have produced the state of affairs alleged. An extensive series of requests for particulars was delivered to and answered by the plaintiff. In several respects, however, the plaintiff’s case at trial went beyond the particulars so furnished to include incidents to which no reference was made in any of her pleadings or particulars. To this the defendant objected at the trial; but a ruling on the objection was postponed and the evidence given over objection during the hearing, until, in the course of addresses, leave was granted to the plaintiff to include the matters objected to as part of its claim. It is not clear that any formal amendment has ever in fact been made to the pleadings so as to formally incorporate in them the matters to which objection was maintained by the defendant. This has some potential consequences for the decision in this case because the medical experts originally formulated their opinions by reference, in part at least, to the matters alleged in the pleadings and particulars, which did not include those which at the trial travelled beyond the particulars alleged.
7. The plaintiff’s response to that particular difficulty is that, in the end, the medical witnesses, who were Dr Green and Dr Alcorn, had, before they gave their evidence, also read the transcript of evidence of the plaintiff’s witnesses at the trial. The problem remains, however, that the trial judge did not accept the whole of the evidence of either the plaintiff herself or of the other witnesses, who were former members of the staff of the defendant’s newspaper during the period when the plaintiff was employed. A very real possibility therefore exists that the two medical witnesses, and in particular Dr Green whose opinion was accepted, based their opinions partly on matters that were rejected by his Honour in making his findings, or on evidence which his Honour did not in the end accept.
8. The point at issue can be illustrated, first, by taking Dr Green’s opinion and his statement at the trial about the evidence on which it was based; and then comparing it with the findings made by the learned trial judge. The critical portion of Dr Green’s evidence at the trial appears in examination in chief, when he was asked, or it was put to him:

“The fact is that you have no hesitation in your first report of attributing her present major depressive disorder to work issues ? --- That’s correct.

And the issues that were described to you by Miss Arnold then and subsequently, would you regard those as matters of a major nature? --- Yes, I would.

You have also, doctor, had the opportunity before coming into Court today to read the transcript of the evidence given by Miss Arnold, is that so ? --- Yes, I have read through it.

Have you read any of the other transcripts in relation to other employees of the Townsville Independent News ? --- Yes, I have scanned through evidence by Miss Hartig and also evidence by a gentleman by the name of Ezard, I think.

In the event, doctor, that the work conditions described by Miss Arnold, Miss Hartig and Mr Ezard are, or did, in fact, exist, doctor, what could you say about the likelihood that those work conditions would cause to your ordinary average employee, the likelihood that it would cause some emotional problems ? --- I would think it would be highly likely that they would be productive of emotional problems. The majority of people, in my view, would be very anxious, apprehensive about what was to happen next in the office.

And does this of course now have an effect upon, or is it likely to have effect upon the psychiatric well-being of employees ? --- Yes.

Why is that ? --- In my opinion, prolonged, unremitting anxiety relating to situations which are threatening and unpredictable is likely to result in the formal diagnosis of an anxiety disorder.”

9. At this point Mr Douglas Q.C. for the defendant broke in to object on the ground that that was not the evidence, and that Dr Green’s summary of the evidence was not correct. His Honour responded, in effect, with the remark that affected the value of the opinion Dr Green was expressing, and that the question which had been put went to the assumptions made. His Honour then asked Dr Green what he understood to be the nature of the conduct complained about, to which he replied “Abusive, threatening, and ... unpredictable”. In answer to a further question from Mr White of counsel for the plaintiff, Dr Green confirmed that the conclusions he had just expressed were gained from reading the transcript. He then went on, in the passage already referred to earlier in these reasons, to say that it was the situation which the plaintiff found herself in when working for the defendant’s newspaper that was “the major factor in precipitating the psychiatric disorder”.
10. Turning to the specific findings made by the trial judge, the plaintiff’s primary complaint was that Williams had constantly and repeatedly verbally abused the plaintiff and other employees, and had done so in foul and abusive language, specifically at regular weekly staff meetings but also, it may be inferred, on other occasions. This is a compressed statement of a number of allegations or sub-allegations contained in paras.7A(a), (b) and (c) and 7A(m) of the statement of claim. The evidence from the plaintiff about the regular weekly meetings was described by his Honour as “relatively brief and in general terms”, to which he added that the same ought be said of the evidence of some of the other witnesses for the plaintiff, such as Hartig and Ezard, who were members of the newspaper staff at the same time as the plaintiff. His Honour nevertheless accepted this evidence as satisfying him that abusive language was used by Williams “towards members of the staff including, from time to time, the plaintiff”. Among the expressions used by Williams to or of them were the terms “fucking children, scumbags, toe rags, and incompetent”.
11. Bonnie Hartig, who was one of the witnesses whose evidence the judge accepted, said that Williams would swear at these meetings “but then again, there were others of us that swore too”. In a lengthy passage from her evidence, which is set out in the reasons of the primary judge, she is recorded as saying that Williams singled out for this kind of comment another employee Mark Timmerman, and also, a couple of times, Deanne Weston, as well as the plaintiff Abi herself. He would have a go at Abi “whenever he could”; but, then, she stuck up for herself, and he did not like that. That was in relation to the subject of advertising which had not come through. Williams was “sarcastic” about her performance; he “put her down, sort of thing, with some sarcastic word”. Asked if it was a common occurrence, Ms. Hartig said “Well, it happened a bit. It happened a bit”.
12. Other matters in respect of which findings were made in favour of the plaintiff were as follows. On one occasion, which is the subject of the allegation in para.7A(e), a journalist named Camplin, who sometimes provided material for the newspaper, was in the defendant’s office talking to a group of people of whom the plaintiff was one. He made a remark to the effect that he did not like big breasted women, to which the plaintiff responded by means of a rude gesture with her finger. The incident itself was of no real consequence, but news of it somehow reached Williams, who then asserted that the plaintiff had made a complaint of sexual harassment against Camplin to the Australian Journalists Association. She was summoned before Williams and apologised to Camplin, informing him that the complaint was “a load of bullshit”. Williams gave a rather different version of the incident; but his Honour accepted that the plaintiff had in fact made no complaint, and that Williams had used the incident as an opportunity to foment trouble between the plaintiff and another member of the staff, which was something which, as the learned judge remarked, some of the witnesses had said he had a tendency to do. Camplin was said to have been present throughout the trial in the capacity of a press reporter; but neither side elected to call him.
13. Another matter found to have been proved was an incident in or occasion on which Williams called the plaintiff and another employee before him, and said that he could sack one of them and give the other her job, but either way one of them would have to go. In effect, he invited each of them to make the decision against the other. In addition, his Honour found it to be proved that on occasions Williams told members of staff that they had now had their second or third warning preparatory to dismissal. The plaintiff was the recipient of such a statement, although she said she had not been given any first warning. This appears to be the subject of the allegation in para.7A(d), although as will appear later in these reasons, his Honour may, on one view of what he said, have rejected this particular allegation as “not borne out by the evidence”. It may also be relevant to this matter that, in his reasons, his Honour said he was not prepared to find that Williams was in breach of his duty to the plaintiff in adopting a practice of encouraging employees at weekly meetings to state their complaints about other employees, or to make comments on them.
14. Two other incidents, which concerned conduct towards other employees that were not the subject of any specific allegation in the pleadings but which were found by the trial judge to be established by evidence, concerned an employee named Sharon Smith, and another employee Jim Roberts. As regards the first of the two, Sharon Smith, who was the receptionist, was approached in the office by a woman customer who inquired about placing an advertisement in the newspaper. Sharon asked the plaintiff to assist her. The office was arranged on an “open plan” system, and Williams evidently overheard the conversation. He shouted from his office that anyone who did not know how to place a classified advertisement should not be working for a newspaper. Sharon was reduced to tears, until the plaintiff somehow succeeded in straightening out the ensuing confusion. At the following Friday meeting, Sharon asked why she had been spoken to like that in front of a customer, and whether she was going to lose her job. Williams assured her that it had been a misunderstanding, and that her job was safe; but, on the following Monday morning, he told her to get her bag, saying “You don’t work here anymore”. This may have been provoked by the fact that he knew she had been talking to Malcolm Johnson about finding her another job.
15. That was in early September 1991. The second of the two incidents, which concerned Jim Roberts, was not in evidence related to any particular date. Roberts was known to be homosexual, which was something for which Williams made his distaste very clear to him and other members of staff. On one occasion he called him “a poofter”, walking up to Robert’s table and wiping everything off it, saying “Let the poofter pick it up himself”. On another occasion he threw Robert’s chair across the room saying he did not like “poofters” sitting on his chair. The plaintiff said that Roberts made no secret of his sexual preferences; but in the plaintiff’s opinion he was a good salesman and she opposed Williams’s plan to dismiss him. In consequence, his dismissal was postponed until some time before Christmas, for which Williams blamed the plaintiff, in that Roberts would now be out of work over Christmas. The whereabouts of Roberts could not be traced at the time of trial in 1998; but a handwritten statement (ex.29) taken from him in February 1992 was admitted in evidence, in which Roberts described Williams as “an arrogant pig”. He made no reference in ex.29 to the matters described by the plaintiff, but his Honour accepted her account of them.
16. Apart from the Doug Nicol matter, to which separate reference will be made later in these reasons, the other two matters of complaint that were found to have been proved took place at the end of the plaintiff’s period of employment with the newspaper and were the events that precipitated her departure. One concerned her car allowance, which was provided for in her original terms of employment (ex.2). This was the subject of para.7A(g)(ii) of the statement of claim, which alleged that Williams had obstructed the plaintiff in the performance of her duty by (ii) refusing to pay her car allowance. His Honour accepted that the car allowance was cancelled at about the time her employment ceased, which was 6 December 1991, but also found that the plaintiff was paid what was due to her at that time. He nevertheless accepted what she said about the peremptory way in which the cancellation was effected, and the terms used by Williams in informing her of his decision. What is meant by this can be gathered from her evidence. Williams said words to the effect “You don’t get commission. You don’t get car allowance. I am the manager here”. He then went on to say something to the effect that Australian women insisted on telling their bosses what to do, and that her car, which was an EH Holden, was a “heap of shit”, and, because it created a bad image for the newspaper, he did not want it parked in the office car park.
17. This evidently happened on either 5 or 6 December 1991. It was on 6 December that the final incident took place, which is alleged in paras.7A(h) and (l) of the statement of claim. The father of her de facto husband was dying of cancer. He lived in Maryborough and the plaintiff wished to see him before he died. She claimed she had a prior arrangement allowing her to do so. When, however, she approached Williams about it, his response was “It’s out of the question. It’s too close to Christmas. You’re entitled to compassionate leave; however, I’m not about to give you any”. This left the plaintiff “in shock”. Her father-in-law died two days later on 8 December 1991 without her having seen him. Paragraph 7A(l) alleges that Williams manifested an insensitive attitude to the plaintiff’s distress when her father-in-law died; but this cannot be correct because by then she had ceased working for the defendant. It was shortly afterwards, 6 December 1991, that Bonnie Hartig took the plaintiff, who was in a distressed condition, to see a doctor. He gave her a certificate to absent herself from work until 20 December 1991. She was referred to Dr Green, the psychiatrist, whom she consulted on 16 January 1992. From that point, matters in due course proceeded to litigation.
18. The plaintiff has never worked again. His Honour accepted that she would not return to the workforce. Her association with her de facto husband came to an end some time after these events, when she proved too difficult for him to live with. At the time of the trial she was 43 years of age. In consequence, as his Honour said, of what had happened, she had largely lost interest in life, and her capacity to enjoy it had been substantially destroyed. She now lives alone in a house in Bundaberg. A Miss Trani, with whom she had an acquaintance earlier in her life, lives near the plaintiff and provides her with some help in performing the ordinary domestic tasks of life. His Honour accepted that, although some improvement in her present condition was likely, the plaintiff had a continuing need for care and assistance. It was on this footing that he assessed the award in her favour, having accepted the evidence of Dr Green “as to the plaintiff’s condition, its causes and its future”.
19. The question is whether this finding and award can be sustained having regard to the difficulty, previously mentioned, that Dr Green’s evidence was ultimately based on a reading of the transcript of the evidence, some of which his Honour did not accept, given by the witnesses for the plaintiff at the trial. There were not many incidents as to which the learned trial judge did not make findings in favour of the plaintiff. However, one of the major issues between the staff and Williams concerned the making of STD calls. Williams acted to block such calls from all but two, or possibly three, telephones in the office. This, according to the plaintiff, made it very difficult for her to perform her function of arranging for clients to advertise in the newspaper. Some of them were in other parts of Australia. It was something that, according to Ms. Hartig, Williams was “particularly savage” about, and caused him to use bad language at the weekly meetings, which, Ms. Hartig said, he did not really use “commonly” at those meetings. He might have used the “F” word “occasionally”, but the difference, she said, lay in the manner in which used such words. It was used as “an attack upon us”. The witness Ezard said that Williams used “crude and vulgar” language to an extent that went beyond what might be expected “in a standard office”, and that he used it to “humiliate and put people down”. Ezard’s impression was that it was the plaintiff and Bonnie Hartig who seemed to bear the brunt of this more than others.
20. The complaint about the restriction on the making of STD calls was the subject of the specific allegation in para.7A(g)(i) of the statement of claim; but it was something which, his Honour said, he was “not prepared to find ... went beyond the reasonable prerogative of management”. Other specific allegations which his Honour found not to be “borne out by the evidence” were those particularised in paras.2(d) and 2(f) of the statement of claim. It is a little uncertain what was meant by this because para.2 of the statement of claim does not contain any relevant allegation of breach of duty. Paragraph 7 of that pleading is, however, subdivided into paras.7A(a) to (m), which are set out in full in the reasons for judgment. In the context, it seems likely that it was to sub-paras.(d) and (f) of this collocation in para.7A that his Honour was intending to refer here. Read in that way, sub-para.(d) alleges the making of threats to dismiss the plaintiff from her employment, and (f) is an allegation of boasting by Williams that he had a reputation for reducing women to tears, and was proud of it. It appears to follow that these were matters which his Honour was not prepared to find as alleged, although, as mentioned above, an affirmative finding was made that Williams had told the plaintiff she had been given her second and third warnings preparatory to dismissal.
21. The remaining matters alleged by the plaintiff that were the subject of evidence at the trial, but which were described by his Honour as not having “any real significance, or which do not justify a finding in the plaintiff’s favour”, must be taken as including para.7A(g)(iii) (refusing to assist, advise, or make decisions when requested to by the plaintiff); para.7A(g)(iv) (baselessly criticising advice given by the plaintiff to customers of advertising space); para.7A(g)(v) (arranging for the defendant not to pay the plaintiff commission on advertising space sold by her); and para.7A(k) (falsely accusing the plaintiff of criminal activity). In addition, there were two further matters that were not the subject of allegations in the plaintiff’s pleadings, but which his Honour specifically identified as of no real significance or as not justifying a finding in favour of the plaintiff. They were an incident in which Williams was said to have observed, in front of all the employees, that some of them were not paid-up members of the Australian Journalists Association; and another incident, in which he was alleged to have written on a whiteboard that Mr Ezard was not merely an idiot but “a fucking idiot”. Another complaint, which his Honour found proved was the practice adopted by Williams at weekly meetings of encouraging one employee to criticise or comment on another in front of the staff. The plaintiff, who was one who experienced this form of treatment, described the practice as demeaning; but the judge said he was not prepared to find it amounted to a breach of duty towards the plaintiff.
22. The question on appeal is where this leaves the evidence of Dr Green, which his Honour accepted as establishing the plaintiff’s condition, its causes, and its future. As has already been mentioned, Dr Green based his opinion on what he was told by the plaintiff in consultation and, in the end, what was said by the plaintiff and the witnesses called by the plaintiff at the trial, of which he read the transcript. It is not clear whether or not he also read the absent witness statements that were tendered in evidence, although it may not matter much. Without knowing which parts of the evidence Dr Green regarded as material in bringing about the plaintiff’s condition, it seems impossible to say that any particular portions of it more than any other influenced him in arriving at the opinion which his Honour accepted and on which he acted in finding in favour of the plaintiff. It will be recalled that, having read the evidence of those witnesses, Dr Green confirmed that the work conditions they described would be productive of “emotional problems” in the majority of people, who would be “very anxious, apprehensive about what was to happen next in the office”. Asked about its effect on the psychiatric well-being of employees, he answered that in his opinion “prolonged unremitting anxiety relating to situations which are threatening and unpredictable is likely to result in the formal diagnosis of an anxiety disorder”.
23. It is not perhaps completely clear that this amounts to saying that the plaintiff was suffering from a psychiatric disorder; but, in response to some questions by his Honour, Dr Green went on to say that he understood the nature of the conduct complained of by the plaintiff to be “abusive, threatening and unpredictable”. It may be accepted that this was what was earlier referred to by Dr Green as the “situation” in which the plaintiff found herself working that was in his opinion “the major factor in precipitating the psychiatric disorder”. The term “abusive” fairly describes the conduct and language used by Williams at the staff meetings and on other occasions, of which all three witnesses gave evidence. It may also be considered to have been on some occasions threatening; but “threatening” or “unpredictable” are expressions also capable of referring to some of the other incidents or matters of complaint by the plaintiff, such as the bar on STD calls, the threats to dismiss from employment, falsely accusing the plaintiff of criminal activity, and so on, which his Honour said he did not find to have been proved.
24. It is, in the state of the evidence now before us, not possible effectively to disentangle these incidents or matters in the testimony of the plaintiff and the other two witnesses named by Dr Green from other matters or incidents about which all three testified. On the face of it, all of it contributed to the foundation on which Dr Green’s opinion was based. In that connection, it is necessary to mention a further and specific matter of complaint made by the plaintiff against Williams. At one stage during her employment, Williams asked her to find out whatever she could about a man named Doug Nicol, who was living on Magnetic Island. Nicol and Williams had formerly both been employed in a newspaper at Warrnambool in the mid to late 1980s, at which time Nicol had instituted proceedings against Williams for assault. The plaintiff had previously been employed by a company providing security services, and was thus able to supply Williams with a good deal of personal detail about Nicol. Williams acknowledged that he had asked the plaintiff to find out if Nicol was living on Magnetic Island; but he denied the plaintiff’s evidence that he then asked her if she could arrange to kill the man. His Honour accepted the plaintiff’s account of this incident as “more convincing”, and also accepted that she was shocked by the discovery that she might have placed someone’s life at risk by obtaining and supplying the information in question. It was made worse for her by the fact that she was unable to interest either her de facto husband or the police in taking the matter seriously.
25. While accepting the plaintiff’s evidence on this issue, the learned trial judge went on to hold that the defendant was not vicariously liable for the conduct of Williams in asking the plaintiff to find someone to kill Nicol. As a matter of law, this is clearly correct. The conduct of Williams in that particular was an independent personal act not connected with or incidental to the work he was engaged to perform. See Deaton’s Proprietary Limited v. Flew (1949) 79 C.L.R. 370. In the present case, his Honour nevertheless held that, even if he had not accepted the plaintiff’s evidence on that matter, or had put it aside, he would still have held that the plaintiff’s psychiatric condition had been substantially caused by the general conduct of Williams “to which I have just referred”. By that, his Honour appears clearly enough to have been referring to the preceding paragraph in his reasons, which he concluded by saying that the plaintiff would still have been entitled to succeed because the conduct of Williams towards her (as distinct from others), “particularly at the meetings to which I have referred but also generally, must be regarded as a substantive cause of her condition”. It is, however, by no means clear that the plaintiff’s allegation concerning the inquiry by Williams about the possibility of killing Nicol may not have formed one among a number of influential factors in the formation of Dr Green’s opinion that it was the conduct of Williams which precipitated the psychiatric condition of the plaintiff.
26. It is simply not possible, with any real degree of confidence, to say to what extent the matters of complaint that were not found in favour of the plaintiff may have influenced Dr Green’s opinion on the question of what had precipitated the plaintiff’s condition, or on his cognate conclusion about the state of her vulnerability to stress before the events described in evidence at the trial. As to that, his opinion was based essentially on the fact that for the first 37 years of her life “one way or another she managed to cope with those issues and traumatic incidents without recourse to psychiatry or psychologists, as far as I am aware”. In this Dr Green was referring to various incidents in the plaintiff’s earlier life, which on any view had been a most unhappy one. She had grown up in Victoria in a family in which her father, who was a violent alcoholic, had sexually abused her from an early age. When this became known, her parents separated, and her father was dishonourably discharged from the RAAF. Her mother was taken to hospital with tuberculosis. The plaintiff went to live with the parents of her boyfriend, whom she married when she was 15½, giving birth to her first child when she was 16 years old, and her second when she was 18. Her husband proved to be a philanderer, and she left him when she was 21. He later committed suicide. She spent some years with a hotel chain in Western Australia as an entertainment manageress, which involved some participation in striptease activities, before becoming a prostitute in Kalgoorlie for six years. She fled from that life under an assumed name in order to avoid being summoned as a witness in the Costigan Inquiry. Eventually she joined the Army, first as a reservist, and then as a regular serviceperson. It was at that time that she acquired an interest in feature writing, in which she demonstrated skills and was highly commended by senior officers. She left the Army in circumstances, which are perhaps a little unclear, by a letter of resignation (ex.11) which recorded her unwillingness to work “in a situation of constant abuse and [be] expected to be able to continue my duties as a private”. After that, she worked for a time for the North Queensland Herald until it closed down through financial difficulties, before joining the newspaper staff of the defendant.
27. Despite the plaintiff’s unhappy past, his Honour accepted Dr Green’s opinion that she was not “highly vulnerable”. In fact, the expression used by Dr Green was that she was not “severely predisposed” to psychiatric breakdown because of her childhood experiences, while saying or agreeing that her basic personality structure was “always vulnerable”. The view he expressed in cross-examination was that:

“Certainly her early childhood experience would strongly suggest that she was vulnerable and predisposed to some sort of breakdown sooner or later. It is interesting, though, that it wasn’t until she was aged 37 that she saw a psychiatrist”.

Dr Green’s evidence on this matter was given in the course of comparing the plaintiff with an average person of normal fortitude placed in a situation similar to that in which the plaintiff found herself subject to Williams. His response, which appears from the passage from his evidence previously set out in these reasons, was that under the conditions described by the plaintiff, Ms. Hartig and Mr Ezard, it would be “highly likely” that the majority of people would be very anxious and apprehensive about what was to happen next in the office, and would develop emotional problems likely to affect their psychiatric well-being. In the normal course of events, he said:

“... the duration should be fairly short perhaps six to 12 months, but in Miss Arnold’s case, because of her vulnerable personality, the duration has continued up to the present”.

28. The forensic purpose in making this comparison between the plaintiff and an “average person of normal fortitude” was to provide a basis for the conclusion that it was reasonably foreseeable that “pure” psychiatric injury would have been sustained by a normal person experiencing conduct of the kind perpetrated by Williams. It was not suggested that Williams knew that the plaintiff had a vulnerable personality; but rather that, because even a normal person in similar circumstances would have succumbed to psychiatric disorder, the defendant was liable for the consequences in fact sustained by the plaintiff even if their drastic extent was due to a special vulnerability on her part to stresses of that kind. There is authority in law for adopting such an approach to questions of this character. In Wilkinson v. Downton [1897] 2 Q.B. 57, 59, R.S. Wright J. spoke of the effect that would be produced on a person proved to be “in an ordinary state of health and mind”. There is some analogy between that case and this to the extent that, in that in both of them, the defendant carried out a deliberate act or acts without due regard for the consequences even if those consequences themselves were not in fact intended. Likewise, in Bunyan v. Jordan (1937) 57 C.L.R. 1, 16, Dixon J. cited a statement by Roscoe Pound to the effect that, in the absence of intention to cause physical harm, liability would not attach in the case of “a person of ordinary nerves and normal sensibilities”. His Honour applied that test in holding (57 C.L.R. 1, at 17) that the shock intended in that instance could not “in a normal person” have been more than transient.
29. Those decisions may be regarded as authority for the negative proposition that liability does not arise if it is not reasonably foreseeable that a “normal” person would be affected by what is done. The converse and affirmative proposition that in law liability for psychiatric illness will exist if it is reasonably foreseeable that a “normal” person would be affected is clearly established in Australia by the decision in Jaensch v. Coffey (1984) 155 C.L.R. 549. What perhaps still remains open is whether, assuming that a person who is “normal” in the sense predicated would to some extent be psychiatrically impaired, the defendant will be liable for all the adverse psychiatric consequences sustained by a plaintiff who happens to be more than unusually vulnerable. Certainly some of the observations of their Honours appear to assume that to be so: see Jaensch v. Coffey (1984) 155 C.L.R. 549, 556, 563, 566, 595; and it was accepted as the appropriate test of liability by the Full Court of the Australian Capital Territory in Wodrow v. Commonwealth (1993) 45 F.C.R. 52, 76; cf. also Gillespie v. Commonwealth of Australia (1991) 104 A.C.T.R 1. In both of those cases the plaintiff’s claim failed, but in neither was the conduct complained of as serious as it was here.
30. Accepting for present purposes that the test is as stated in those authorities, the question is whether the plaintiff in the present instance succeeded in satisfying that criterion of liability. For reasons already explained, it is not possible to say that she did. There is evidence from Dr Green that an average person of normal fortitude in the situation in which the plaintiff found herself would have suffered “anxiety disorder” for a fairly short period of perhaps 6 to 12 months. If that conclusion is sufficient for the purpose of the principle stated in the authorities, it is nevertheless not sufficient in the present case, where the opinion of Dr Green was based on evidence of the plaintiff and her witnesses not all of which was accepted by the learned judge or, in the case of the Nicol incident, regarded as the responsibility of the defendant. Since it is impossible to interpret the general statements of Dr Green on this subject as capable of being applied distributively to each of the incidents or conduct on which he based his opinion, the unfortunate consequence is that the plaintiff failed at trial to establish by evidence that an average person of normal fortitude would have been psychiatrically impaired by the particular incidents or matters which his Honour found to have been proved against the defendant at trial; or, to express it in another form, that it was those matters considered in isolation that caused the condition from which the plaintiff now suffers.
31. The further question remains whether this Court is able now to reach a conclusion on the matter by exercising the powers conferred by this Court by O.70, r.26 of the Rules of the Supreme Court. It provides that the Court, if satisfied that it has before it all the material necessary for finally determining the questions in dispute, or any of them “may ... give judgment accordingly ...”. The provisions of the rule have only to be stated to show that it is not possible in this instance to apply them to sustain this judgment in favour of the plaintiff. There is no means in this Court, any more than in the court below, of telling whether Dr Green’s opinion would have remained the same if some of the evidence for the plaintiff on which he based his conclusions had been excluded from his consideration. It is true that, in a passage in the reasons of the trial judge to which reference has been made, his Honour said that the plaintiff would have been entitled to succeed because of the conduct of Williams towards her “particularly at the meetings”. It is, however, not possible to find in her favour on the basis only of what was done at those meetings (which presumably means the regular weekly staff meetings). In the passage in question, his Honour did not so expressly so confine it, adding as “a substantive cause of her psychiatric condition”, Williams’s conduct towards her “generally”. As it happens, there appear, during the period for which the plaintiff was subject to Williams in the defendant’s employ, to have been a total of no more than 14 such weekly meetings. One or two of the others must have taken place in the early stages when relations were apparently still cordial. Unforgivable as the conduct of Williams towards his staff is clearly shown to have been, it continued for only about three months at most, during which the plaintiff was one, but not the only one, of the principal targets of his misanthropic attitude. Perhaps all of the other 10 or so employees were individuals of more than ordinary resilience; if not, it is not easy to understand why none of them appear to have complained of psychiatric disorders of the kind and extent predicated by Dr Green of average persons of normal fortitude placed in the same circumstances.
32. Much the same considerations prevail in determining the defendant’s liability pursuant to s.9(1) of the Workplace Health and Safety Act 1989. It imposes a statutory liability for failing to ensure an employee’s health and safety unless it is “not practicable” for the employer to do so. In Rogers v. Brambles Australia Ltd. [1998] 1 Qd.R. 212, it was held that the onus of establishing impracticability rested on the employer, and in Mount Isa Mines Limited v. Peachey (C.A. No. 3072 of 1998; 1 December, 1998) that the material facts giving rise to such a defence should be pleaded. Paragraph 7 of the defence in this action relied on the defendant’s vulnerability, which was alleged to be unknown to the defendant. That issue has already been considered here; but, in any event, even assuming a breach on the part of the defendant of its statutory duty under s.9(1), it remained for the plaintiff to prove that the matters or incidents alleged and found to have constituted the breach of duty in fact caused the psychiatric injury complained of. Because of the discrepancy between the evidence relied on by Dr Green to support his opinion, and the more limited respects in which it was found that the defendant breached its duty, the plaintiff failed at trial to establish her cause of action under s.9(1).
33. The appellant also challenged the quantum of the award. The breakdown of the total $549,220.83 is as follows:

34. The major attack was directed to past and future economic loss and the cost of past and future care. It is difficult, if not impossible to make a proper evaluation of the assessment made by the learned trial judge because he did not make express findings of fact with respect to critical components in the assessment.
35. During her short period of employment with the defendant the plaintiff was on a salary of $350 per week gross with a car allowance of $100 per week. She was also entitled to some additional amount by way of commission. There was a finding that the plaintiff arrived in Townsville “in the mid-80s” and the following specific finding was made with respect to her earning capacity:

“For some time after her arrival in Townsville she received a widow’s pension together with some income as a member of the Army Reserve. She was a full time member of the Army for about 7 months. From then until December 1991 she had worked for Wormald Limited, Magnetic Press Pty Ltd, and the defendant. The documents which have been tendered do not show precisely the periods during which she was employed in each of these positions. However, it can be accepted she was in employment generally during those periods. However, she cannot be regarded as having been continuously in employment since her arrival in Townsville. It is obvious from the evidence I heard that employment in newspapers such as The Townsville Independent News is somewhat precarious. Many of the witnesses or persons referred to in evidence were dismissed or had resigned. None of the witnesses who gave evidence before me was still employed there. Moreover there has to be taken into account, the possibility that the plaintiff’s vulnerability may have resulted in the onset of such a condition in other circumstances although I accept Dr Green’s opinion that she was not highly vulnerable. I have evidence of her income with the defendant and calculations based on pay rates applicable to country newspapers.”

36. After saying that, the learned trial judge merely concluded: “I allow loss of earnings, including loss of superannuation entitlement until the present, in the sum of $75,000”. One does not know how that sum was arrived at. There were approximately 320 weeks from the date the plaintiff ceased her employment with the defendant to the trial. An amount of $75,000 over 320 weeks gives a figure of $234 for each week. That may not be regarded as high when looked at in isolation, but if regard is had to the discounting factors adverted to by the learned trial judge it becomes arguably an unsubstantiated figure. The plaintiff had never been in a long term full time employment with any one employer and her work history in Townsville suggested that in the six year period prior to trial there were significant periods of unemployment. There is evidence to the effect that she sought employment in the six years before trial but could not find anything suitable. Further, it is doubtful what discounting, if any, the learned trial judge made for the plaintiff’s vulnerability in any event to the onset of a psychiatric condition. In the absence of specific findings it is questionable whether $75,000 represents reasonable compensation for past economic loss.
37. It is much clearer that the figure of $160,000 for future economic loss is excessive. With respect to future economic loss the learned trial judge merely said:

“Similar considerations apply in the assessment of future economic loss. In addition the ordinary vicissitudes and contingencies must be allowed for. Although there is likely to be some improvement in her present condition, she will not return to the workforce. I allow for future economic loss the sum of $160,000 including loss of superannuation entitlement.”

38. Much of the medical evidence could be taken as indicating that the plaintiff’s psychiatric condition for which her work environment was allegedly responsible caused her to suffer from such a condition as prevented her from working for some two years after the event. There is certainly very strong evidence to suggest that dependency on cannabis and other drugs, not related to her alleged work-induced psychiatric condition, was responsible for maintaining her depression at a level which prevented her from returning to work. Unfortunately, the learned trial judge did not specifically address these matters. In many of his reports, particularly the early ones, Dr Green (whose evidence the learned trial judge primarily accepted) expressed the view that she would be able to return to work, albeit with different employer and in a different field, after a few years.
39. But in any event a future loss of $160,000 cannot be justified. The plaintiff was aged 43 at the trial. Prior to the events involving the defendant she had had a chequered work history and for periods had been dependent on drugs such as pethidine. She had a vulnerability, at least to some extent, to developing depression or other psychiatric illness and the chances of her remaining in full time gainful employment until age 60 were arguably remote. The learned trial judge did not indicate how he calculated the $160,000, but he was required by statute to adopt the 5% discount table. On that basis it can be worked out that $160,000 represents $288 per week over a 15 year period (that is to age 58) and $240 per week over a 20 year period (that is to age 63). In other words, the assessment for future economic loss must have been based on a higher weekly figure than the calculation of past economic loss. There is simply no justification for that; certainly none was stated by the learned trial judge. He did not assess her future earning capacity; in particular he made no finding as to the extent of her future working life.
40. The $160,000 for future economic loss is clearly manifestly excessive and could not be allowed to stand.
41. With respect to past care and assistance the learned trial judge had this to say:

“The plaintiff has required considerable care and assistance. Her relationship with her defacto husband broke up at about the time she was overcoming her dependency on narcotic drugs which had been prescribed for her in the course of her treatment following the events I am concerned with. Since that time as I have already mentioned, the burden of this has fallen on others, particularly Miss Trani. I accept that the plaintiff requires the type of care and assistance which Miss Purse an occupational therapist referred to in evidence. She needs someone to keep an eye on her and assistance with particular tasks. Some discounts for contingencies has to be applied to the figure claimed. It was accepted that an appropriate rate per hour was $8. Doing the best I can, I allow past care and assistance in the sum of $120,000.”

42. Ms. Trani gave evidence; but none of it was specifically referred to by the learned trial judge in his reasons. He merely spoke of the plaintiff needing someone to keep an eye on her and requiring assistance with particular tasks. The report from Ms. Purse was ex.18 and she gave only very brief oral evidence. She spoke of a minimum requirement of 2 hours per week increasing over time, but did not attempt to calculate the maximum number of hours per week that had been or would be required. Most of the tasks involved in providing the care were simple, rather in the nature of supervision when the plaintiff was doing something specific, such as having a bath.
43. As already noted there were approximately 320 weeks from date of cessation of employment to trial. Until about November 1996 the plaintiff lived with her de facto ND Lynwood. He gave evidence but the learned trial judge made no findings as to the extent of the care, if any, he provided during that period. The involvement of Ms Trani commenced only in about July 1997, about eight months prior to trial. No finding in terms of time spent by Ms Trani in providing care was made.
44. If the $120,000 is spread over the 320 weeks, the cost of providing the services was $375 per week. At $8 per hour (the agreed rate) that means 46.8 hours per week of each and every week was spent on providing care. The evidence does not support such an assessment. There is simply no way in which the assessment of $120,000 can be justified.
45. Finally the learned trial judge dealt with the cost of future care and assistance. In that regard he observed:

“As far as the future is concerned, the plaintiff will continue require ongoing assistance of about the present order although some allowance has to be made for the improvement which Dr Green thinks will occur. As well, the other factors to which I have already referred have to be taken into account. I allow for future care and assistance the sum of $100,000.”

46. Again the learned trial judge has not revealed the components of his calculation. How much a week did he allow? Over what period was the care to be provided? At what stage in her life would the plaintiff have required that degree of care and assistance in any event? If, as appears likely, he projected the 46 hours care per week into the future, such an assessment is not supported by the evidence.
47. Again, as the 5% discount table had to be utilized, one can determine that over a 15 year period it represents $180 per week, and over a 20 year period $150 per week. At a cost of $8 per hour, it gives 22 hours per week on the first assumption, and 18 hours per week on the second. That contrasts with the evidence of Ms. Purse of a minimum of 14 hours per week. A period of 14 hours a week represents $112 per week, and over a 20 year period that would produce $74,592. That has only to be stated to see how excessive the assessment was here.
48. If the judgment on liability were to stand, then it would have to be said that award was manifestly excessive and should be set aside. Given the absence of findings of fact on critical issues to the assessment of quantum, the only solution in those circumstances would be to send the matter back for retrial on quantum only.
49. It follows from what has been said about the issue of liability that the appeal should be allowed with costs; the judgment below should be set aside; and judgment should be given in favour of the defendant in the action with costs, including reserved costs, if any.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 Appeal No. 4010 of 1998

Brisbane

Before McPherson J.A.

Williams J.

Muir J.

BETWEEN:

MIDWEST RADIO LTD.

ACN 003 072 455

(Defendant) Appellant

AND:

MARILYN ABIGAIL ARNOLD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 12 February 1999

1. I gratefully adopt the careful presentation and analysis of relevant facts in the joint judgment of McPherson J.A. and Williams J. Although I have much sympathy with the conclusion reached in the joint judgment and with the reasons for that conclusion I cannot share the view that the appeal against the learned trial judges’ finding of liability should succeed.
2. The critical deficiency in the evidence identified in the joint judgment is the lack of precise identification of the evidence on which Dr Green based his opinion that an average person of normal fortitude in the situation in which the respondent found herself would have suffered “anxiety disorder” for a fairly short period of perhaps six to twelve months. It is pointed out in the joint judgment that the respondent’s case suffers from these difficulties:

• Dr Green’s opinion was based on facts or, perhaps, more accurately, his appreciation of facts derived from his perusal of a transcript of the evidence of the respondent and three other witnesses called on her behalf. Yet some of the material evidence of those witnesses was not accepted by the trial judge;
• Although accepting some evidence relied on by the respondent, the trial judge held that such evidence did not amount to a breach of duty by the appellant;
• Dr Green did not exclude either of the above categories of evidence from the matters which he took into account in forming his opinion and, of course, he did not specifically state how, if at all, his opinion would have been altered had such matters been excluded from his consideration.

3. I accept, with respect, that these criticisms are formidable but, in my view, it does not follow that the trial Judge’s findings as to liability should not be sustained.
4. Dr Green was the plaintiff’s treating psychiatrist. Reports made by him dated 20 January 1992, 16 March 1992, 7 July 1992, 9 December 1992, January 1993, and 29 May 1997 were tendered. None of the reports contain a recital of the facts on which the opinions expressed in the report are based which is of much use for present purposes. I note though that in the report dated 20 January 1992, Dr Green expressed the opinion that:

“Ms. Arnold is suffering from a major depressive disorder. Since there is no past history of depressive illness and no family history of depressive illness it would appear that work related stresses are significant in the development and aggravation of her depressive illness.”

5. The oral evidence of Dr Green, which is of relevance for present purposes, is of relatively short compass and it is desirable that I set it out in some detail. The following passages are extracted from Dr Green’s examination-in-chief:

“The fact is that you have no hesitation in your first report of attributing her present major depressive disorder to work issues?-- That’s correct

 ....

You have also, doctor, had the opportunity before coming into Court today to read the transcript of the evidence given by Miss Arnold, is that so?-- Yes, I have read through it.

Have you read any of the other transcript in relation to other employees of the Townsville Independent News?-- Yes, I have scanned through evidence by Miss Hartig and also evidence by a gentleman by the name of Ezard, I think.

In the event, doctor, that the work conditions described by Miss Arnold, Miss Hartig and Mr Ezard are, or did, in fact, exist, doctor, what could you say about the likelihood that those work conditions would cause to your ordinary average employee, the likelihood that it would cause some emotional problems?-- I would think it would be highly likely that they would be productive of emotional problems. The majority of people, in my view, could be very anxious, apprehensive about what was to happen next in the office.

And does this of course now have an effect upon, or is it likely to have effect upon the psychiatric well-being of employees?-- Yes.

Why is that?-- In my opinion, prolonged, unremitting anxiety relating to situations which are threatening and unpredictable is likely to result in the formal diagnosis of an anxiety disorder...” (emphasis supplied)

6. The following passages are extracted from Dr Green’s cross-examination:

“So, she did go on quite a bit about what was happening in the office, but I didn’t record the detail of that.

Nor did she tell you, it seems, in that she didn’t go into particular instances?-- I think she might have, but I just didn’t record all the sorts of detail about who was doing what to whom in the office and who said what, but there is no doubt that I concluded at the time that that was a significant stressor and, in fact, the central stressor in her presentation.

 ....

Doctor, would you agree with this statement: in the overall context of the subject’s life, the events of this workplace, although they may be attributable by her to being the central event precipitating her downfall, could be construed as, at worst, a moderate stressor in the context of a turbulent and distressing life and psychiatric and substance abusing asymptomatology?-- No, I wouldn’t agree with that. It was a major stressor.

So that’s where we differ, is that so?-- Yes.

Now, that was the major disorder that you saw?-- It was.

What event or events, in particular?-- I think it was the accumulation of events in the office environment, which involved her and others around her. As I said yesterday, the way I saw it, after reading the transcripts, or some of the transcripts, anyway, was that it was an unpredictable, inconsistent environment, generated by Mr Williams.”

7. It will be seen that Dr Green categorised the nature of the conduct to which the respondent was exposed in the work place as: “threatening and, .. unpredictable.” He said of it, “.. it was an unpredictable, inconsistent environment, generated by Mr Williams.”
8. Dr Green’s opinions were thus expressed in a fairly general way on the basis of an overall impression of the conduct experienced by the respondent. He was assessing the impact of a course of conduct rather than analysing the separate impacts of individual acts or events constituting that conduct.
9. In the circumstances, Dr Green’s opinion does not cease to have any probative value merely because some of the individual acts or events taken into account by him in forming his opinion should not have been considered.
10. At worst for the respondent, there were opinions expressed by Dr Green that -

• “prolonged, unremitting anxiety relating to situations which are threatening and unpredictable is likely to result in the formal diagnosis of an anxiety disorder.”
• “work related stresses are significant in the development and aggravation of her depressive illnesses.”
• “work conditions” of the nature of those experienced by the respondent were “highly likely ... [to] be productive of emotional problems.”

11. The trial judge described Mr Williams’ conduct in his reasons as “ ... aggressive, bullying, abusive, belittling and sarcastic” and added that it was “often expressed in or accompanied by foul language.” The examples of misconduct given in the reasons make it plain that his Honour was of the view that conduct to which he referred was threatening, prolonged and unremitting. It may also be inferred from the reasons that the conduct upon which his Honour relied to arrive at a finding of liability had strong elements of unpredictability about it.
12. The following findings illustrate conduct which is as unpredictable as it is extreme. On one occasion, his Honour finds, the respondent at the request of Williams supplied information about one Nicol. After providing the information she was then asked by Williams “If she could procure someone to kill Nicol.” On another occasion Williams, “as a means of fomenting trouble between the respondent and another member of the staff” convened a meeting with the respondent and that staff member where he taxed her, erroneously, with having made a sexual harassment complaint against the staff member.
13. On a further occasion Williams called the respondent and another employee into his office and said “of the two of them he could sack the other person and give the [respondent] her job or sack the [respondent] and give the other person the co-ordinators job.”
14. His Honour regarded the conduct to which the respondent was subjected as being of such an extreme nature that he was moved to remark:

“I am inclined to think that even in the absence of such evidence [the evidence of the two psychiatrists who gave evidence on the trial] the Court would be entitled to conclude that a person might develop some psychological or psychiatric harm in such circumstances. However the evidence of the two psychiatrists makes this abundantly clear.”

15. His Honour was ideally placed, as the trial judge, to absorb the flavour of the evidence and to assess the evidence of the psychiatrists in the light of his impressions. In my view, having regard to the evidence of Dr Green which I have identified above, it was open to his Honour to reach the conclusion that conduct which he found to be wrongful caused the respondent’s psychiatric condition and was such that it was reasonably foreseeable that a person without any special vulnerability might suffer psychiatric harm as a result of exposure to it. His Honour, not Dr Green, was the tribunal of fact. He was thus in the position of weighing the evidence and determining, in the light of the expert psychiatric evidence available to him, whether it was sufficient to sustain the conclusion that the appellant’s wrongful conduct “as a matter of ordinary common sense and experience should be regarded as a cause” of the respondent’s psychiatric condition. See March v Stramare (1990-1991) 171 CLR 506 at 522.
16. In reaching his conclusion his Honour also relied on the evidence of Dr Alcorn, the psychiatrist called on behalf of the appellant. Dr Alcorn gave evidence to the effect that if events had occurred as the respondent and Miss Hartig had claimed in their oral evidence most “normal individuals” would have developed “a condition called an adjustment disorder.” The condition identified by Dr Alcorn was a condition recognisable as a psychiatric illness or disturbance as opposed to “an immediate emotional response to a distressing experience.” cf Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383.
17. In the course of cross-examination, after agreeing with the description “severely derogatory” in relation to the treatment of the respondent by Williams and, after accepting that the conduct complained of was “unremitting”, the following exchange occurred:

“And it is indeed the type of behaviour and the period is, I think in your words, likely to cause a disorder that can extend up to, in the ordinary employee, a disorder lasting for 2 years?-- Yes, I think that’s so.”

18. Dr Alcorn did not accept the description of “prolonged” in respect of the conduct the subject of complaint but observed “.. it is probably a matter of degree”. Although this evidence, like that of Dr Green was directed to the totality of the evidence of some identified witnesses, as was the case with Dr Green, Dr Alcorn’s opinion was ultimately based, not on the possible effect of one, two or even three stated incidents, but on an overall course of conduct of an abusive and derogatory nature which was unremitting. It was this evidence on which his Honour was able to rely in making his findings on liability.
19. For the above reasons I would dismiss the appeal in relation to liability. I am in broad agreement with many of the views expressed in the joint judgment on quantum and would order the matter be remitted to the trial judge for a retrial of quantum only.