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Robinson v Lorna Jane Pty Ltd[2017] QDC 266

Robinson v Lorna Jane Pty Ltd[2017] QDC 266

DISTRICT COURT OF QUEENSLAND

CITATION:

Robinson v Lorna Jane Pty Ltd [2017] QDC 266

PARTIES:

AMY LOUISE ROBINSON

(plaintiff)

v

LORNA JANE PTY LTD
ABN 91 065 384 616

(defendant)

FILE NO/S:

DC No 3507 of 2015

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

14-17 February, 22-26 May, 6 & 9 June 2017

Written submissions: 8, 16, 19 June 2017

JUDGE:

Koppenol DCJ

ORDER:

  1. Plaintiff’s claim dismissed.
  2. Judgment for the Defendant.
  3. I will hear the parties as to costs.

CATCHWORDS:

TORTS – LIABILITY – LIABILITY OF EMPLOYER – whether established

TORTS – VICARIOUS LIABILITY – INJURY AT WORKPLACE – EMPLOYER LIABILITY – WORKPLACE BULLYING – whether established

TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – LIABILITY GENERALLY AND DAMNUM SINE INJURIA – whether plaintiff’s case on liability made out on balance of probabilities

TORTS – NEGLIGENCE – WORKPLACE INJURY – SAFE SYSTEM OF WORK

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – whether established

Workers’ Compensation and Rehabilitation Act 2003 (Reprint 6A), ss 305B-305E

Workers’ Compensation and Rehabilitation Regulation 2003 (Reprint 5), s 112D(3), sched 9

Prince Alfred College Inc v ADC (2016) 258 CLR 134, applied

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied

Wyong Shire Council v Shirt (1980) 146 CLR 40, applied

Deatons Pty Ltd v Flew (1949) 79 CLR 370, applied

Berhane v Woolworths Ltd [2017] QCA 166, applied

The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, applied

Woolworths Ltd v Perrins [2016] 2 QdR 276 (CA), applied

Collings v WCB [1997] QCA 224, applied

COUNSEL:

MJ O'Sullivan for the plaintiff

RM Treston QC and KJ Kluss for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

BT Lawyers for the defendant

I – Introduction

  1. [1]
    Ms Robinson was employed by Lorna Jane Pty Ltd for a total of 20 weeks (between July and December 2012). She was the manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.
  2. [2]
    She claims that during that period, she was treated inappropriately (bullied) in various ways by Lorna Jane’s learning and development manager (Ms McCarthy), to whom Ms Robinson reported and was subordinate.
  3. [3]
    That was said to have (a) caused her a psychiatric illness, with consequent loss of her employment and (at least significantly reduced) employability, and (b) triggered her pre-existing mixed personality disorder.
  4. [4]
    She was placed on stress leave by her doctor on 1 December 2012. She was 36 years of age at the time. She then applied for workers’ compensation and has never returned to work.
  5. [5]
    Ms Robinson also claims that she suffered physical injuries (haemorrhoids) when lifting and moving heavy boxes of stock at the DFO store on two occasions.
  6. [6]
    She claims more than $570,000 as damages for negligence.
  7. [7]
    Both liability and quantum are in issue.
  8. [8]
    For the reasons which follow, I have concluded that Ms Robinson failed to prove her claim on the balance of probabilities, with the result that her claim for damages will be dismissed.

II – Liability

  1. [9]
    There was no dispute between the parties that:

(a)liability is to be determined in accordance with the civil liability provisions contained in sections 305-305E of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) (Reprint 6A);

(b)Lorna Jane owed Ms Robinson a duty to take reasonable care for her safety in the workplace; and

(c)such duty included taking reasonable care to avoid psychiatric injury.

  A. Psychiatric Injury

  1. [10]
    Ms Robinson’s case (as ultimately refined in closing submissions) was that:
  1. (1)
    Lorna Jane was directly liable for McCarthy’s acts or omissions, because it was on notice in August 2012 that McCarthy was acting inappropriately in the workplace (bullying Ms Robinson) and causing her undue mental distress;
  2. (2)
    Lorna Jane was vicariously liable for McCarthy’s acts or omissions undertaken in the course of her employment;
  3. (3)
    Lorna Jane breached its duty of care by not warning and counselling McCarthy about her behaviour towards Ms Robinson;
  4. (4)
    Ms Robinson suffered psychiatric illness and her pre-existing personality disorder was triggered because of McCarthy’s wrongful acts or omissions and Lorna Jane’s breach of duty; and
  5. (5)
    if McCarthy had received appropriate workplace warnings and counselling with respect to properly treating Ms Robinson, McCarthy would have ceased her inappropriate behaviour towards Ms Robinson and she probably would not have suffered the psychiatric illness or have had her personality disorder triggered.

Was Lorna Jane “on notice” and directly liable?

  1. [11]
    The allegation that Lorna Jane was on notice of (that is, had actual knowledge of) McCarthy’s behaviour and its effect on Ms Robinson was based upon two specific events: an email of 23 August 2012 (Maninnen email) and a meeting on 29 August 2012 (Perrin meeting).

Maninnen email

  1. [12]
    The subject email was sent on 23 August 2012 by Ms Maninnen (a former DFO store employee) to Ms Perrin (Lorna Jane’s national sales manager) and to Ms Robinson.[1]
  2. [13]
    By that email, Maninnen resigned as a Lorna Jane employee. She praised Ms Robinson and complained about McCarthy. Her main complaint was about issues that she had with McCarthy. She also said that McCarthy was giving Ms Robinson a “hard time” and treating her “so different and cold” [sic] to the point when Ms Robinson had “come to tears”. She concluded by saying that she would not work for a company that uses “scare tactics, intimidation, favouritism and bullying in the workplace”. However, she did not allege that McCarthy had done any such things.
  3. [14]
    There are three reasons why this aspect of the “on notice” allegation should not be accepted.
  4. [15]
    First, the email expressed (a) Maninnen’s opinion about the interaction between McCarthy and Ms Robinson, and (b) her conclusion that Ms Robinson had cried because of her treatment by McCarthy. No contextual background to that treatment was mentioned in the email. Absent context, Maninnen’s opinion and conclusion cannot be evaluated. The email was also not specific about the things that McCarthy allegedly did or when they occurred. That lack of specificity also results in the inability to evaluate whatever may have been alleged.
  5. [16]
    Secondly, it was written by an unhappy employee who was resigning and who may have taken that opportunity to unfairly criticise someone (McCarthy) whom she did not like. That possibility cannot be overlooked.
  6. [17]
    Thirdly, there are undoubtedly many reasons why an employee might “come to tears” after an interaction with a supervisor. Human experience shows that people react in many different ways to a given situation. It all depends upon the particular circumstances and people involved.
  7. [18]
    Because there are so many variables involved in every case, I do not accept the submission that a report that an employee had been given a hard time and treated differently and coldly and had come to tears after a non-specific and non-contextual interaction with a supervisor would cause management to conclude that the employee was being treated inappropriately and suffering mental distress.
  8. [19]
    I find that the Maninnen email did not put Lorna Jane on notice, as was alleged.
  9. [20]
    Perhaps appreciating those problems, Mr O'Sullivan of Counsel (who appeared for Ms Robinson) submitted that:[2]

“the email itself would not, by itself, require you as an employer to do anything more than investigate, because you don’t know the value of the document, how reasonable the assertions are … until you investigate it.”

  1. [21]
    In any event, Perrin’s evidence was that after receiving the email, she (a) informed Lorna Jane’s HR department about the email, (b) attempted on a number of occasions (ultimately, unsuccessfully) to contact Maninnen to discuss her email, and (c) then had a meeting with Ms Robinson (as discussed below). In my view, those were the appropriate steps to take in response to the Maninnen email.

Perrin meeting

  1. [22]
    It was that meeting which was said to be the second event supporting the “on notice” allegation. The meeting was on 29 August 2012 at the food court near the DFO store at Skygate.
  2. [23]
    Ms Robinson gave evidence that she told Perrin that she was being unfairly treated and bullied and harassed in various ways by McCarthy. She said that they discussed the Maninnen email at some length and that she was tearful and stressed as they did so. She said that she also told Perrin that she had already seen a doctor about that.
  3. [24]
    Perrin’s evidence was quite different. She said that she “wanted to make sure that I could best investigate it [the email] given the nature of the concerns in the email.”[3]She said that she and Ms Robinson did not discuss Maninnen’s email but rather whether there were any significant issues or concerns at the store. She said that Ms Robinson portrayed herself as very dynamic, energetic and motivated—and was not complaining or tearful. She said that Ms Robinson asked for some flexibility in her rosters because of her children’s childcare and also for some more training in operational processes.[4]
  4. [25]
    Mr O'Sullivan submitted that Ms Robinson’s version of the meeting was the “linchpin” of her case.
  5. [26]
    There were only two people at the meeting. Each version of what was allegedly said cannot be correct. Mr O'Sullivan accepted that in the circumstances, either Perrin was lying or his client was lying. He added:[5] 

“Well, your Honour, just because it is true that in some respects, my client’s unreliable, it does not mean that in respect to this critical meeting, when the most obvious and reasonable version of what occurred then is that of the plaintiff, that you should dismiss her version.”

  1. [27]
    On any view, the Court’s assessment of the credibility of Perrin and of Ms Robinson is a key factor in determining whose version of the meeting should be accepted, on the balance of probabilities.
  2. [28]
    Mr O'Sullivan submitted that for a number of reasons, Perrin’s version should not be accepted: she did not give Ms Robinson any notice of the meeting; she showed it in her Outlook calendar diary as an “investigation” but gave evidence that she “went there with a very open objective of just seeing how she was settling into the business”; she did not take a copy of the Maninnen email with her or discuss the email, even though it had been copied to Ms Robinson; she did not take notes at the meeting or make them after it; and Perrin’s version of the meeting “beggars belief”. Perrin, he submitted, was lying.
  3. [29]
    There are six reasons why those criticisms of Perrin should not be accepted.
  4. [30]
    First, why would Perrin have lied? No reason or motive was advanced. Although Perrin gave evidence that she still worked for Lorna Jane, Mr O'Sullivan did not suggest to her during cross-examination that she was lying (or trying to cover up what really happened) to try to save her job or to prevent her from being disciplined or demoted.
  5. [31]
    Secondly, whilst Perrin did say that she went to the meeting with an open objective of seeing how Ms Robinson was settling in, she also said that (a) her “purpose” in going there was to be able to “openly understand if there were any concerns that Amy [Robinson] wanted to raise with me directly”,[6]and (b) to “give Amy the opportunity to, if she had the same concerns [that Maninnen set out in her email], to bring them to my attention because, again, I hadn’t had the opportunity to get any more information from Naomi [Maninnen].”[7]Those additional extracts place Perrin’s evidence in proper context.
  6. [32]
    Thirdly, not everyone acts in the particular way that Mr O'Sullivan submitted that Perrin should have done. After receiving Maninnen’s email, Perrin promptly advised HR and attempted a number of times to speak with Maninnen. Perrin then went out to the store. Should she have telephoned Ms Robinson beforehand to tell her that she was coming? Some people would have done that and others would not. Was the calendar entry a true statement of Perrin’s real intent? It was. Indeed Perrin herself accepted that the calendared “investigation” was in respect of the Maninnen email. She said that:[8]

“I suppose my use of the word investigation was just to go and have an open conversation with the team member, so that I could, you know, ascertain if there was anything of concern going on out in that business, and also to meet her for the first time.”

  1. [33]
    Should she have taken a copy of the email with her? Some people would have done that but why was it necessary? She knew what it said.
  2. [34]
    During final submissions, the following exchange occurred:[9]

“HIS HONOUR: [C]ould it be said that [going to the store and seeing how she was settling into the business] was [Perrin’s] style of seeing how Ms Robinson was going and whether there were any issues?

MR O'SULLIVAN: It could be. That’s a remote possibility, But, your Honour, it would be extraordinary that you’d investigate some serious allegations in an email that clearly flagged serious issues at the store and you wouldn’t have actually mentioned the email.”

  1. [35]
    Should she have actually mentioned the email during the discussion with Ms Robinson? That would have been one way of trying to find out whether there were any problems at the store. Surely another way would have been to go to the store and sit down with Ms Robinson and discuss how she was settling in. That type of approach would also give her the opportunity to raise any problems or issues that she had—especially as Maninnen had also sent a copy of her email to Ms Robinson. If she were really having problems with the way that McCarthy was treating her, that meeting was the perfect opportunity to raise them with management there and then. Perrin said that Ms Robinson raised issues about rosters and training only.
  2. [36]
    Should Perrin have taken notes or made them later? A lawyer would have done that. Lawyers are trained to do that. Lawyers know how important contemporaneous notes can be. But not everyone acts in that way. Perrin did not take notes. She may have had a good memory. Indeed, she gave evidence that she remembered that meeting particularly—because it was the only meeting that she had ever had with a store manager (and she had about 30 to 35 meetings per year with store managers) which turned into a stress claim and later, a television article and ultimately, litigation.[10]They are powerful reasons as to why a senior person (as Perrin was) would remember the details of that meeting.
  3. [37]
    Was Perrin’s version of the meeting therefore one that “beggars belief”? In all of the circumstances, my answer is No. To the contrary, I found Perrin to be an impressive and credible witness.
  4. [38]
    Fourthly, what action did Perrin take after that meeting? She organised extra training for Ms Robinson and also took action to follow up her request about roster flexibility. In my view, those were the appropriate steps to take in response to the matters discussed at the meeting. Ms Robinson’s account of the meeting would require the conclusion that Perrin chose to act on Ms Robinson’s requests about rosters and training, but to ignore her tearful complaints about McCarthy’s bullying and other behaviour. That would be remarkable. That is especially so as there was evidence that Perrin had moved other staff when there were internal issues—something that she could easily have done for Ms Robinson if she had complained about McCarthy.
  5. [39]
    Fifthly, it is noteworthy that although Ms Robinson had many attendances upon numerous medical practitioners both before and after commencing Court action, there is no evidence that she ever mentioned to any of them the episode of her tearfulness at that meeting with Perrin.
  6. [40]
    Sixthly, the point must be made here that for the reasons which follow, I found Ms Robinson to be a most unreliable witness.
  7. [41]
    No doubt Mr O'Sullivan was concerned about that possible perception. After saying that “it is true that in some respects, my client’s unreliable”,[11]he conceded that “[i]t would be fair to say that [she] did not present as a good witness in many respects”.[12]He added that:[13]

“until you understand that she has this mixed personality disorder, you might be overly critical of her and the way she behaves.”

  1. [42]
    However, as Ms Treston QC (who appeared with Ms Kluss of Counsel for Lorna Jane) submitted, there was no medical evidence that Ms Robinson “was unreliable because of her personality disorder”.[14]I accept that submission—which in any event was not disputed by Mr O'Sullivan.
  2. [43]
    My finding that Ms Robinson was an unreliable witness is based upon a number of factors, of which the most significant were the following two.
  3. [44]
    First, the evidence concerning her employment history did not support Ms Robinson’s version of it.
  4. [45]
    Dr Ashwani Garg (psychiatrist) was called as a witness by Ms Robinson. He gave evidence that based upon the past employment history that she gave him, she was a “successful person” with “exemplary occupational functioning” before she went to work at Lorna Jane.[15]Ms Robinson’s evidence was that at the time that she applied for the job at Lorna Jane in mid-2012, she had been working as the club general manager at Curves Aspley since 2010.
  5. [46]
    However, the documentary evidence before the Court showed that (a) in the 2010 financial year, Ms Robinson earned a total of $318 gross (from child care work), (b) in the 2011 financial year, she earned $4,323 gross from working two hours a week at Curves and $4,703 gross from other employment, and (c) in the 2012 financial year, she earned $1,340 gross from working two hours a week at Curves. Ms Robinson’s only other source of income in those years was a Centrelink pension. There was no documentary evidence of Ms Robinson’s earning any other income in any other financial years.
  6. [47]
    Ms Robinson tried to dispute those details. She claimed that she earned a lot more money than that from Curves and had been paid through her ABN—and indeed, had bank statements to prove it.[16]No such bank statements were ever produced to the Court. She also claimed that she had recently applied to the Australian Taxation Office to correct her past employment and earnings history.[17]No supporting documentation about that was ever produced to the Court. The inference to be drawn then is that Ms Robinson’s evidence was false.
  7. [48]
    Mr O'Sullivan submitted that Ms Robinson “was, indeed, a manager at Curves” and that “she might have been poorly paid”.[18]However, that overlooks the impression conveyed by her saying that she had been the club general manager at Curves since 2010. That impression was not of a poorly-paid part-time “manager” of some kind but of a successful, appropriately-paid, full-time club general manager. Her claims were misleading and exaggerated.
  8. [49]
    Similarly, the impression of herself that Ms Robinson gave to Dr Garg was of a “very active, enthusiastic and successful” person who had performed very well in a variety of jobs over the years—to such an extent that he was able to conclude that her occupational functioning was “exemplary”. She also told Dr Garg that she had “run a dance academy and worked as a senior manager in other businesses”.[19]However, once Dr Garg became acquainted with evidence of the true position with respect to Ms Robinson’s employment history, he agreed (in cross-examination) that not only was Ms Robinson’s occupational functioning not exemplary, but that all that she had demonstrated was a “limited ability to earn income”.[20]Ms Robinson’s claims were misleading and exaggerated.
  9. [50]
    Ms Robinson gave evidence that she worked as the PR and marketing manager for Cannons Gymnasium in London, England in 1993. When it was brought to her attention in cross-examination that she was in year 12 at high school in South Australia in 1993, she claimed that her dates for the Cannons job were “obviously incorrect”.[21]
  10. [51]
    She claimed that she went to London in 1994 and later that year, (a) started and then successfully completed a certificate of dance instruction at the Royal Academy of Dance and Performance (presumably, the Royal Academy of Dance) in London,[22]and (b) also worked as a dance instructor at that Academy.
  11. [52]
    She said that in 1994-95, she was employed in London as (a) the events co-ordinator at the Lion’s Bar on King’s Road, and (b) as a dancer and model with big name acts such as Madonna—but she also accepted that in 1995, she was living with her boyfriend in a caravan park in South Australia.[23]
  12. [53]
    Ms Robinson later claimed that during the early- to mid-1990s, she travelled back and forth a lot from Adelaide to London.[24]
  13. [54]
    No supporting documentation about any of those allegations by Ms Robinson was ever produced to the Court.
  14. [55]
    Ms Robinson said that her ex-husband had destroyed some of that material and other documentation had been lost. Even if that were true, it would have been a simple task, in relation to the world-renowned Royal Academy of Dance for example, to have emailed the Academy and requested a copy of her 1994 certificate. I mentioned that very thing during Ms Robinson’s re-examination on 17 February 2017.[25]Similarly, the other alleged former employers in London could have been emailed for confirmation of her work with them. Arrival and departure records also may have been obtainable from the Australian Department of Immigration and Border Protection to verify her alleged international travel in the 1990s. Ms Robinson said that she had an expired passport,[26]but it was not produced.
  15. [56]
    The trial resumed on 22 May 2017 (after a 3-months interval) but no documentation about any of her alleged London activities or international travel was produced.
  16. [57]
    The clear inference from her failure to produce any supporting material whatsoever is that she did not work in London or gain a qualification there.
  17. [58]
    Quite obviously alert to this credibility problem, Mr O'Sullivan conceded that “no doubt, [the] Madonna evidence is probably adverse to her, and she’s embellished that”.[27]
  18. [59]
    In my view, this goes much further than “embellishment”. Ms Robinson was trying to portray herself as a successful businesswoman and performer with significant international experience. On the evidence, those claims were false.
  19. [60]
    Secondly, Ms Robinson’s evidence about her social activities was contrary to the true position.
  20. [61]
    Ms Robinson told Dr Garg, when she saw him in September 2014, that she was socially avoidant and isolated and did not use social media.[28]In January 2017, she saw Dr Garg again and told him then that (a) her “social anxiety prevents her from going out and meeting people, or having people over to her house”, and (b) she “avoids going to the local shops where she might run into people she knows.”[29]She also gave evidence that what she told Dr Garg in January 2017 was the truth.[30]
  21. [62]
    However, other evidence before the Court (some of which came from Ms Robinson herself) told a very different story.
  22. [63]
    It showed that from the time that she left Lorna Jane in December 2012, Ms Robinson has been engaged in all manner of social activities—including regularly attending a gym, attending music concerts, regularly attending crowded venues such as Dreamworld, attending Boxing Day sales, organising community fundraising events for animal welfare, opening a GoFundMe page and receiving financial donations into her private bank accounts, being the administrator on Facebook pages and Instagram accounts, becoming a campaigner against domestic violence, accepting invitations to speak at public rallies against domestic violence, attending a mourning ceremony for a murdered woman and then delivering a speech on behalf of the family, delivering bread to people in need, and giving media interviews about her case.
  23. [64]
    When that state of affairs was explained to Dr Garg during cross-examination at the trial, he (a) said that it was “inconsistent with” what Ms Robinson had told him, and (b) agreed that Ms Robinson “might not have been truthful with him” about her social activities.[31]
  24. [65]
    Dr Alfred Chung (psychiatrist) was cross-examined about this by Mr O'Sullivan. Dr Chung said that it would be “very hard to believe” that someone with the adjustment disorder from which he understood Ms Robinson to suffer would be able to engage in those social activities, even if (as was the case) she had been encouraged by her treating psychologist (Dr Oertel) to do so.[32]Dr Chung explained, by analogy, that:[33]

“Telling somebody to go out and have fun is not therapy. … [P]atients would not be able to just go and have some fun, just because they were told by their psychologist.”

  1. [66]
    Dr Kenneth Arthur (psychiatrist) was also cross-examined about this by Mr O'Sullivan. Dr Arthur said that he regarded Ms Robinson’s ability to attend a large music concert just days after she left Lorna Jane as (a) “totally inconsistent” with her reported history, and (b) one which it was “extremely unlikely” that she would have been able to tolerate if she had the clinically-significant anxiety which she had portrayed herself as having.[34]
  2. [67]
    Far from being socially isolated and avoidant, I find that Ms Robinson was active and engaged in the community. The version that she gave to Dr Garg was false.
  3. [68]
    Ms Robinson also told Dr Garg in January 2017 that whenever she saw the Lorna Jane brand, she “starts shaking with anxiety … [which] leads to her getting  palpitations, shortness of breath and sweating”.[35]
  4. [69]
    However, in cross-examination,[36]Ms Robinson was shown photographs of her children and herself at a photo shoot.[37]The photographs had been downloaded by Lorna Jane’s legal representatives from Ms Robinson’s Facebook account—to which they had been given leave to access. The photographs had not been disclosed by Ms Robinson during the usual pre-trial processes. The photographs showed Ms Robinson posing, apparently happily, while dressed in Lorna Jane clothing.
  5. [70]
    Ms Robinson suggested that the photographs were taken while she worked at Lorna Jane.[38]That was demonstrably false because (a) her hair was dyed black in the photographs, whereas photographs of her while she worked at Lorna Jane showed that her hair was blonde, and (b) her own evidence was that her hair was blonde while she worked at Lorna Jane.[39]Ms Robinson also tried to explain away the discrepancy by claiming that she “then dyed [her] hair blonde”.[40]However, (a) the photo shoot of Ms Robinson with dark hair was dated 9 June 2013, and (b) there were other photographs dated 13 June 2013 in evidence in which her hair was the same dark colour.[41]
  6. [71]
    I am satisfied (and find) that the photo shoot of Ms Robinson wearing Lorna Jane clothing was taken in June 2013.
  7. [72]
    When informed during cross-examination of Ms Robinson’s wearing Lorna Jane clothing at the photo shoot, Dr Garg agreed that it was “likely” that Ms Robinson had been “less than truthful” with him about her reactions to the Lorna Jane brand.[42]
  8. [73]
    I find that the version of events that Ms Robinson gave to Dr Garg about her reaction to the Lorna Jane brand was untrue.
  9. [74]
    Accordingly, because of my findings that (a) Ms Robinson was an unreliable witness with serious credibility issues, and (b) Perrin was an impressive and credible witness, I accept Perrin’s evidence as to what was discussed at her meeting with Ms Robinson. Contrary to Mr O'Sullivan’s submission, I find that Perrin was not lying. It follows that I reject Ms Robinson’s version of that meeting.
  10. [75]
    I find that the Perrin meeting did not put Lorna Jane on notice, as Ms Robinson alleged.

Lorna Jane not “on notice”

  1. [76]
    I find that neither the Maninnen email nor the Perrin meeting put Lorna Jane “on notice”, as was alleged in paragraphs [10] and [11] above.

Lorna Jane not “directly liable”

  1. [77]
    Because (a) the “on notice” allegation has failed, and (b) it was the only basis upon which Lorna Jane was said to have been directly liable for the alleged acts or omissions of McCarthy, it follows that the allegation of direct liability itself also fails.
  2. [78]
    That disposes of the first way in which Ms Robinson pleaded that Lorna Jane was liable for her alleged psychiatric injury.

Vicarious liability

  1. [79]
    The second way in which Lorna Jane was said to be liable for Ms Robinson’s alleged psychiatric injury was because it was vicariously liable for McCarthy’s behaviour.
  2. [80]
    Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. It is not a form of absolute liability and therefore each case will turn on its own facts.
  3. [81]
    The most recent consideration by the High Court of Australia of this principle was in Prince Alfred College Inc v ADC (2016) 258 CLR 134. Relevantly for present purposes, French CJ, Kiefel, Bell, Keane and Nettle JJ said that:[43][emphasis added]

“in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”

  1. [82]
    The plurality also said that:[44][emphasis added]

“[a]s Deatons Pty Ltd v Flew [(1949) 79 CLR 370] demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment.”

  1. [83]
    Therefore, the first step in this process is to identify the alleged “wrongful act”. The second step is then to determine if, in all of the relevant circumstances, the employer is vicariously liable for it.
  2. [84]
    Lorna Jane did not dispute that it was vicariously liable for any wrongful acts or omissions of McCarthy undertaken in the course of her employment. However, it denied that McCarthy had committed any such wrongful acts or omissions.

McCarthy’s alleged wrongful acts or omissions

  1. [85]
    Ms Robinson pleaded (in paragraph 4 of her Further Amended Statement of Claim (FASC)) that McCarthy had engaged in a variety of wrongful behaviour towards her. However, in his final submissions, Mr O'Sullivan said that:[45]

“[i]t’s not necessary for the plaintiff to establish that each and every item listed in paragraph 4 involved a breach of duty. What the plaintiff must do, at the end of the day, is to prove that it was only those matters that bespeak breach of duty that are causative of the condition suffered by the plaintiff.”

  1. [86]
    In other words, Ms Robinson was not pressing every pleaded allegation of wrongful behaviour by McCarthy. The allegations which I understood to be ultimately pressed were that McCarthy had (a) called Ms Robinson “cheap” and a “generator” and other names via Facebook social media, (b) made various remarks to Ms Robinson about her weight, and (c) been dismissive towards her.[46]
  2. [87]
    Those allegations, aptly described during submissions as allegations of bullying, will now be examined.

Name-calling: “Cheap”

  1. [88]
    In his closing submissions, Mr O'Sullivan said that:[47]

“some [features] you would certainly say don’t take matters very far and are quite minimal, that my client’s called cheap.”

  1. [89]
    Ms Robinson gave evidence that McCarthy referred to her on two occasions as “cheap”. That was in the context of asking her (a) to remove an adhesive diamante near her eye, and (b) not to write on her hand, because it looked cheap. McCarthy denied using the term “cheap”.
  2. [90]
    There are three reasons why I do not accept Ms Robinson’s evidence.
  3. [91]
    First, the comment about the diamante was made on Ms Robinson’s first day of training (16 July 2012), while McCarthy was explaining things to her. Ms Robinson said that she and McCarthy got on well then. They watched a video entitled “What do I wear to work”. McCarthy gave evidence that she told Ms Robinson that the stick-on diamante “looked great” but was not “in line with the company uniform”. Ms Robinson then took it off.[48]
  4. [92]
    In those circumstances, I regard it as unlikely that McCarthy would have used the term “cheap” to Ms Robinson while explaining Lorna Jane’s policies about personal appearance.
  5. [93]
    Secondly, the writing on the hand comment was allegedly made some time later, at the DFO store. Maninnen said that she overheard part of a conversation between McCarthy and Ms Robinson, who were both in a back room near the change rooms. Maninnen did not give any indication of where she was at the time that she allegedly heard McCarthy tell Ms Robinson not to write on her hand “because it makes her look cheap”. Maninnen said that she was “busy doing [her] own work” at the time and did not hear “a great deal” of the conversation, but did hear “bits and pieces”.[49]Unless McCarthy spoke loudly or Maninnen was quite close to her or there was little or no background noise in the store at that time—and there was no evidence about any of those things, it is difficult to accept Maninnen’s evidence.
  6. [94]
    Maninnen was also no friend of McCarthy. Maninnen criticised McCarthy and praised Ms Robinson in her resignation email. That factor cannot be overlooked.
  7. [95]
    I regard it as unlikely that Maninnen would have heard the words about which she gave evidence.
  8. [96]
    Thirdly, in my view, it was also unlikely that McCarthy would have described Ms Robinson’s writing on her hand as “cheap”. McCarthy said that while they were doing some training, she noticed that Ms Robinson “had pen on her hands”, so she:[50]

“just instructed her to take that off, wash her hands, purely because it wasn’t in our uniform procedure, and it’s something that could smudge on to clothes, and it just didn’t look clean.”

  1. [97]
    Because of her role as Ms Robinson’s supervisor, McCarthy was entitled (and probably even obliged) to provide direction to Ms Robinson as to the appropriate image that Lorna Jane sought to present and uphold. That is all that I think that McCarthy did.
  2. [98]
    I am not satisfied on the balance of probabilities that McCarthy referred to Ms Robinson as “cheap”.

Name-calling: “Generator”

  1. [99]
    Ms Robinson gave evidence that McCarthy often referred to her as a “generator”. She said that (a) it started when she received a Lorna Jane award for the most inspiring team, and (b) McCarthy also said it when she achieved her sales markers or KPIs. Ms Robinson said that (c) although she thought that it sounded quite good on some occasions and quite nasty on others, she “didn’t really clarify with [McCarthy] what it meant.” However, Ms Robinson’s criticism of McCarthy in this regard relates to McCarthy’s alleged nasty usage of the term towards her.
  2. [100]
    There are four reasons why I do not accept Ms Robinson’s evidence.
  3. [101]
    First, Ms Robinson did not give one example of the term’s being used in a nasty way towards her and there was no other evidence that McCarthy had ever done so.
  4. [102]
    Secondly, Maninnen said that she overheard McCarthy call Ms Robinson a “generator” on one occasion. That was said to have been on the same occasion that was referred to in paragraph [93]. Ms Robinson, however, did not give evidence that the “cheap” comment and the “generator” comment were made in the one conversation. In any event, although it is unlikely (in my opinion) that Maninnen could have heard what was said, she gave evidence that she “didn’t think anything of [the term] at the time”. She said that if she had thought that it meant something nasty, she would have “stepped up and said something” to McCarthy—which she never did.
  5. [103]
    Thirdly, another DFO store employee, Ms Abbas, said that (a) she never heard McCarthy use the term at work, but (b) she did hear McCarthy use it at the Lorna Jane Christmas party on 27 November 2012. However, Abbas accepted that McCarthy did not identify Ms Robinson as a generator and could have been talking about anybody.[51]
  6. [104]
    Fourthly, Ms Robinson did not raise any issue in relation to being called a “generator” at any time before 20 November 2012 (see [106]). Until then, there was no evidence that the term (whatever it meant) had any negative psychiatric or other impact upon Ms Robinson.
  7. [105]
    In the circumstances, I find that no liability attaches to Lorna Jane in relation to the use of the term “generator”.

Name-calling: by Facebook

  1. [106]
    It was on 20 November 2012 that Ms Robinson (a) became aware of two Facebook posts made by McCarthy,[52]and (b) then sent an email to a Lorna Jane senior officer attaching them. The first post (dated 27 September 2012) read:

“I have discovered a new name for the people I despise – I call them ‘Generators’ purely because they fill their days generating more problems for me to deal with. Generators are similar to mutants – people who are genuine oxygen thieves.”

  1. [107]
    The second (dated 1 November 2012) read:

“What a day! It’s difficult to soar with the eagles when your [sic] surrounded by turkeys. Is it too late to pursue a different career?”

  1. [108]
    Mr O'Sullivan asked Ms Robinson about the first post:[53]

“Once you received that Facebook copy, did it inform you of anything to do with the way in which you’d been spoken to as a generator?---Yes. It actually made me feel quite sick.”

  1. [109]
    Ms Robinson claimed that McCarthy’s “generator” post was referring to her.
  2. [110]
    There are four reasons why that argument should not be accepted.
  3. [111]
    First, the post did not expressly identify Ms Robinson as the target of the remark or suggest by implication that she was the target.
  4. [112]
    Secondly, Abbas gave evidence that she read those Facebook posts and did not view them “as a personal attack against anyone” but rather: “I just found them a little bit inappropriate”.[54]
  5. [113]
    Thirdly, McCarthy said that (a) she thought that her Facebook page was her personal page and accessible by her Facebook friends only and not by the public,[55](b) she posted the entries because she was “frustrated in general with [her] job”,[56]but the posts were not directed at anyone in particular or anyone at work, (c) she thought that she “was making a joke” by what she said in the Facebook posts and she “didn’t despise anyone”,[57]and (d) until Perrin explained to her that those posts could be perceived “the wrong way”, it had not occurred to her.[58]I accept McCarthy’s evidence about that.
  6. [114]
    Fourthly, McCarthy herself acknowledged that she should not have posted those Facebook entries and that it was inappropriate to have done so. Lorna Jane had in place strict policies against bullying by social media and McCarthy knew that. Thus, the acceptance of Ms Robinson’s argument would necessarily imply that McCarthy deliberately disregarded that known policy and posted the Facebook entries anyway. I regard that scenario as most unlikely.
  7. [115]
    Once Lorna Jane became aware of the Facebook posts, McCarthy was immediately instructed to take them down (delete them), which she did. Lorna Jane also immediately (a) took disciplinary action against McCarthy, (b) removed the DFO store from McCarthy’s control, and (c) arranged for Ms Robinson to report to Perrin and not to McCarthy.[59]In my view, those were the appropriate steps to take in response to Lorna Jane’s becoming aware of the offending Facebook posts.
  8. [116]
    Various negative psychiatric consequences for Ms Robinson were claimed to flow from her becoming aware of the Facebook posts. That proposition necessarily implies that in the 10 days between her becoming aware of them on 20 November 2012 and going on stress leave on 1 December 2012, there was something more that Lorna Jane should have done that would have prevented Ms Robinson’s suffering those alleged psychiatric consequences. That “something more” was never articulated and indeed, was not the subject of any psychiatric evidence or of any submissions.
  9. [117]
    However, leaving aside those problems for Ms Robinson’s case, whatever the alleged negative psychiatric consequences may have been, they could be sheeted home to Lorna Jane only if it were vicariously liable for McCarthy’s posting of the offending entries.
  10. [118]
    Mr O'Sullivan submitted that Lorna Jane was vicariously liable because it had “a social policy, anti-bullying policy … that acknowledged the significance in this day and age of bullying via social media.”[60]
  11. [119]
    There are three reasons why Mr O'Sullivan’s submission should not be accepted.
  12. [120]
    First, no authority was cited which would create vicarious liability only because (a) an employer had a policy against doing the wrongful act, (b) the offending employee knew of the policy, and (c) disregarded the policy and did the wrongful act anyway.
  13. [121]
    Secondly, the posts were McCarthy’s personal posts on her personal Facebook page. There was no evidence that the posts were (a) made with Lorna Jane’s permission or imprimatur, (b) known by Lorna Jane to have been made at all, or (c) made in the course of or incidental to McCarthy’s employment.
  14. [122]
    Thirdly, an analysis of the controlling High Court decisions in this regard (see [81], [82]) establishes that the principle of vicarious liability does not apply to impose liability on Lorna Jane for the subject Facebook posts.
  15. [123]
    Thus, in Deatons Pty Ltd v Flew (1949) 79 CLR 370, Dixon J said that the barmaid in that case could not be said to have acted in the course of her employment in throwing at the plaintiff the contents of a glass of beer and then the glass itself.[61]Her actions were entirely unconnected with her employment. His Honour described the barmaid’s act as one of personal “passion and resentment”, not done in furtherance of the employer’s interests, under his express or implied authority or as an incident to, or in consequence of, anything that she was employed to do.[62]She did not throw the beer or the glass in the course of maintaining discipline or order, for which she was not in any event authorised. Dixon J also said that it was not one of those acts for which an employer may be liable because they were acts:[63]

“to which the ostensible performance of his master’s work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master”.

  1. [124]
    Applying Deatons v Flew, I am not satisfied that McCarthy’s posting of the Facebook entries were acts (a) done in the course of her employment or connected with her employment, or (b) done in furtherance of Lorna Jane’s interests or under its express or implied authority or as an incident to or in consequence of anything that she was employed to do, or (c) for which an employer may be liable because they were acts to which the ostensible performance of Lorna Jane’s work gave occasion, or (d) which were committed under cover of the authority that she was held out as possessing or of the position in which she was placed as a representative of Lorna Jane.
  2. [125]
    Furthermore, when applying the relevant approach from the High Court’s most recent decision on this point—Prince Alfred College Inc v ADC (2016) 258 CLR 134, I am not satisfied that McCarthy’s posting of the Facebook entries was done (a) in the apparent performance of her role as Ms Robinson’s supervisor, or (b) because of any special role that Lorna Jane had assigned to McCarthy which placed her in a position or gave her the occasion to take advantage of that by posting the offending Facebook entries.
  3. [126]
    In the circumstances, I find that Lorna Jane is not vicariously liable for the subject Facebook posts made by McCarthy.
  4. [127]
    As previously discussed, Lorna Jane is not liable either in respect of McCarthy’s allegedly calling Ms Robinson “cheap” or a “generator”.

Remarking about weight

  1. [128]
    Ms Robinson gave evidence that on a number of occasions at the DFO store, McCarthy made various remarks to her about her weight. The tone of the alleged remarks was nasty and offensive. She needed to lose weight. She should skip lunch. She should eat less. She should wear smaller-sized clothes to encourage her to lose weight.[64]
  2. [129]
    There are five reasons why I do not accept Ms Robinson’s evidence.
  3. [130]
    First, although remarks of that nature were alleged to have been made to her at least once a week, no other witness gave any evidence of hearing McCarthy say any such things.
  4. [131]
    Secondly, Ms Robinson did not mention weight-bullying (a) at her meeting with Perrin on 29 August 2012, or (b) in a lengthy letter of complaint that she sent to Lorna Jane on 25 October 2012,[65]or (c) in the managerial and disciplinary processes which occurred subsequently. Those processes included a formal counselling meeting to discuss the complaints which had been made by three of Ms Robinson’s co-workers at the DFO store about Ms Robinson’s conduct there.[66]Eventually, Ms Robinson was formally disciplined by Lorna Jane in relation to her conduct at work.
  5. [132]
    Thirdly, Ms Robinson gave evidence at the trial that she had made notes about being weight-bullied while she worked at Lorna Jane. She said that the notes were at her home.[67]Although the notes were not disclosed in the usual pre-trial processes, there would have been no problem in tendering them during re-examination. Mr O'Sullivan even indicated that he would do that.[68]
  6. [133]
    The notes were never produced to the Court. No explanation for that was given. The clear inference is that there were no such notes and Ms Robinson had just made up a story about them. In my view, that state of affairs was another factor which damaged Ms Robinson’s credibility.
  7. [134]
    Fourthly, photographs of Ms Robinson were in evidence.[69]Some were taken during her period of employment at Lorna Jane. It submitted that the photographs showed that Ms Robinson was not overweight—and appeared fit and healthy and of a similar body size to many of the DFO store’s other employees. Having examined the photographs, I respectfully agree.
  8. [135]
    Fifthly, McCarthy denied ever bullying Ms Robinson—about her weight or anything else. To the contrary, McCarthy said that (a) Ms Robinson’s demeanour was “great” at the start, but (b) over time, Ms Robinson “became a little aggressive” and “hard to talk to” and she “received a few complaints from team members”. McCarthy also said that (c) she herself became “quite intimidated by [Ms Robinson]”.[70]I accept McCarthy’s evidence because I regard her as a credible witness.
  9. [136]
    Mr O'Sullivan submitted that McCarthy despised Ms Robinson and other employees and was prepared to say and write cruel, nasty and degrading things about them (including on Facebook).[71]He submitted that as a result, it gives “support” for accepting Ms Robinson’s evidence that she was weight-bullied by McCarthy.
  10. [137]
    There are two reasons why I do not accept that submission and a third reason why, in any event, the submission leads nowhere.
  11. [138]
    First, I have commented previously about Ms Robinson’s unreliability and credibility problems. That is a significant feature which is also relevant to this aspect of the case.
  12. [139]
    Secondly, in summary, the evidence is that Ms Robinson claims that she was weight-bullied. The alleged bully denies having done so and gave evidence (which I accept) that it was Ms Robinson who was the aggressor. McCarthy’s conduct allegedly happened at least once a week but no one else heard it. In any event, Ms Robinson was not overweight. She did not complain about any weight-bullying when she had a number of opportunities to do so. She claimed to have made notes of the bullying but never produced them or explained their non-production.
  13. [140]
    Thirdly, Ms Robinson also gave evidence that she had been bullied about her weight both before and after she worked at Lorna Jane—and that it was not “a huge issue”.[72]However, she did not give any evidence that she was hurt, angry or upset by those alleged comments. On that basis, even if I had found that some remarks about her weight had been made to her while she worked at Lorna Jane, they clearly did not appear to cause her any psychiatric injury.
  14. [141]
    I do not accept Ms Robinson’s evidence that she was bullied by McCarthy about her weight.

Being dismissive

  1. [142]
    Mr O'Sullivan described this issue as “dismissive conduct in a general sense”.[73]
  2. [143]
    Ms Robinson gave evidence that McCarthy did a number of things that Ms Robinson regarded as “dismissive”. She said that it occurred at the DFO store and at staff meetings elsewhere. McCarthy would “move on” in conversations and not make herself available to return to the topics. She said that she would deal with Ms Robinson later or tell her to “just deal with it later”. She would gesture to her with her hand “as if to say, ‘Not now’”.
  3. [144]
    For the reasons set out in the following paragraphs, I do not accept that evidence about McCarthy’s alleged behaviour.
  4. [145]
    Abbas gave some supporting evidence for Ms Robinson. She said that McCarthy “was dismissive” towards Ms Robinson. She said that at a staff meeting, McCarthy was “quite abrupt” and although she “couldn’t recall the exact conversation”, McCarthy told Ms Robinson (whom Abbas thought wanted to say something) that “[w]e’ll just deal with that later.”[74]
  5. [146]
    Human experience shows that managerial styles vary. Managers undoubtedly conduct staff meetings and engage in interaction with staff in all manner of ways. Doubtless, many factors are relevant, such as (a) the people involved and their personalities, talent and experience, (b) the subjects to be discussed, (c) the time available, and (d) the needs of the business. Human experience also shows that actions may be misinterpreted. One person may observe something which appears to that person to be an action of a particular type but another observer may view the same action quite differently.
  6. [147]
    So for example, to understand Abbas’ impression that McCarthy was dismissive and quite abrupt with Ms Robinson and told her that they would deal later with the point that Ms Robinson apparently wanted to raise, it would first be necessary to know the context in which that occurred. Abbas could not recall the conversation and did not give any real contextual background to what was said. Similarly, it would be necessary to examine the context and any other relevant issues to be able to form any view about the reasonableness or otherwise of all of McCarthy’s allegedly “dismissive” conduct towards Ms Robinson. Merely to describe something as “dismissive” is to state a subjective impression or a conclusion as a result of the contextual features involved.
  7. [148]
    Without knowing the full context, Ms Robinson’s complaints that McCarthy (a) would move on in conversations with her and not make herself available to return to the topics, (b) made comments about dealing with things later, and (c) gestured to her with her hand, are so vague and open to multiple interpretations (or misinterpretations) that, by themselves, they cannot be taken to “bespeak breach of duty”, as Mr O'Sullivan submitted. Of course, there may have been reasons why McCarthy “moved on” in a particular conversation. To determine that, the occasion concerned and the factual background would need to be identified. Then the actual circumstances would need to be set out in an intelligible way. The same requirements would apply before reaching any conclusions about hand gestures or saying that one would deal with things later.
  8. [149]
    Ms Robinson’s complaints about McCarthy’s alleged dismissive conduct have not been established on the balance of probabilities. As a result, no vicarious liability attaches to Lorna Jane in that regard.

Lorna Jane not vicariously liable

  1. [150]
    Because each of the allegations of vicarious liability in paragraph [86] failed to be established, it follows that the allegation of vicarious liability itself also fails. I find that Lorna Jane was not vicariously liable for the alleged acts or omissions of McCarthy.
  2. [151]
    That disposes of the second of the two ways in which Ms Robinson pleaded that Lorna Jane was liable for her alleged psychiatric injury.

Disposition

  1. [152]
    Ms Robinson alleged that Lorna Jane was directly liable and vicariously liable for McCarthy’s acts and omissions. Those allegations failed to be established. No other basis for liability on the part of Lorna Jane was alleged.
  2. [153]
    It follows that Ms Robinson’s claim for damages (in respect of her alleged psychiatric injury) also fails and will be dismissed.
  3. [154]
    Although that disposes of this aspect of Ms Robinson’s claim, it is appropriate that consideration also be given to the other requirements which Ms Robinson would have had to establish, in the event that direct liability and/or vicarious liability had been made out. It was common ground that those other requirements are set out in sections 305B and 305D of the WCRA. It is unnecessary for present purposes to extract those provisions in full.

WCRA requirements

  1. [155]
    To have succeeded in her claim, Ms Robinson would have needed to prove, on the balance of probabilities, that:
  1. (1)
    the risk of psychiatric injury was foreseeable, not insignificant and that a reasonable person in Lorna Jane’s position would have taken precautions against the risk of injury (section 305B);
  2. (2)
    the breach of duty was a necessary condition of the occurrence of the injury (factual causation) (section 305D(1)(a)); and
  3. (3)
    it is appropriate for the scope of Lorna Jane’s liability to extend to the injury so caused (scope of liability) (section 305D(1)(b)).
  1. [156]
    To prove factual causation under section 305D(1)(a), a plaintiff must demonstrate the existence of a causal link between the alleged breach of duty and the alleged damage. That is done by establishing the so-called “counterfactual circumstance”—which requires the identification of (a) what a defendant should have done, had reasonable care been exercised, and (b) how that particular action probably would have prevented the damage.[75]
  2. [157]
    The breach of duty which was ultimately relied upon by Ms Robinson was that Lorna Jane did not warn and appropriately counsel McCarthy about her behaviour towards Ms Robinson. The FASC alleged that “if care had been taken, any injury or illness was likely to have been avoided altogether”.[76]
  3. [158]
    A question arose about whether the counterfactual circumstance was adequately pleaded. Although it could have been pleaded more clearly, I am satisfied that the effect of the allegations in paragraph [157] was to sufficiently identify the relevant hypothesis upon which Ms Robinson was relying. It was that if Lorna Jane had warned and appropriately counselled McCarthy about her inappropriate behaviour towards Ms Robinson, that behaviour would not have continued—and as a result, that probably would have protected Ms Robinson from psychiatric injury. That was also the approach which Mr O'Sullivan adopted in his final submissions. If that action had been taken, he argued, Ms Robinson “would not have suffered” the psychiatric injury.[77]
  4. [159]
    It was not disputed that (a) if it were established that the risk of psychiatric injury were foreseeable and not insignificant, a reasonable person in Lorna Jane’s position would have taken precautions such as those which were relied upon by Ms Robinson, and (b) if all other requirements were established, it was appropriate for the scope of Lorna Jane’s liability to extend to the injury so caused.
  5. [160]
    It follows that for Ms Robinson to have succeeded on causation, she would have had to prove (on the balance of probabilities) that:
  1. (1)
    the risk of psychiatric injury was foreseeable and not insignificant; and
  2. (2)
    if Lorna Jane had warned and appropriately counselled McCarthy, that probably would have protected her from psychiatric injury.
  1. [161]
    Those two questions will now be addressed.

Was risk of psychiatric injury foreseeable and not insignificant?

  1. [162]
    A risk of injury is foreseeable if it is not far-fetched or fanciful. Even if the risk is remote or extremely unlikely to occur, it is still regarded as foreseeable.[78]There is no distinction in this regard between a risk of physical injury and a risk of psychiatric injury.[79]Although 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.[80]
  2. [163]
    Many factors can then be relevant in determining foreseeability. They include both the nature and extent of the work being done by the employee and also whether there were any express or implied warning signs coming from the employee.[81]
  3. [164]
    There are four reasons why, in my opinion, the risk of psychiatric injury here was not foreseeable.
  4. [165]
    First, it may be accepted that there was an element of stress associated with the various duties which Ms Robinson was required to perform as store manager. That is not altogether surprising in Ms Robinson’s situation. She had done some part-time work in the previous couple of years but there was no credible evidence that she had ever held down a full-time job on a permanent basis. She was also a single parent with three children. However, she wanted the Lorna Jane job and she got it. Mr O'Sullivan submitted that Ms Robinson “perceived” McCarthy’s behaviour as stressful.[82]However, as is well known, stress is part of the system of work under which many employees carry out their daily duties.[83]Although stress can sometimes trigger psychiatric illness, it is not the law in Australia that employers must recognise that all employees are at risk of psychiatric injury from stress at work.[84]Thus, stress, of itself, is insufficient to establish a foreseeable risk of injury. Indeed, in the present case, Dr Garg was clear that Ms Robinson’s underlying disorder was not caused by stress—whether at work or from anywhere else.[85]
  5. [166]
    Secondly, it must also be kept in mind that employees choose their jobs. They apply for a job and hope to get it. That is what Ms Robinson did. She portrayed herself as confident and experienced and able to do the job as store manager. She hoped to get the job and she was successful. Similarly, an employer engaging an employee to perform stated duties is entitled to assume (in the absence of evident signs warning of the possibility of psychiatric injury) that the employee (a) considers that he or she is able to do the job, and (b) is a person of normal fortitude.[86]
  6. [167]
    Were there any warning signs that Ms Robinson might possibly suffer (or be suffering from) a psychiatric injury or be a person not of normal fortitude? There was no evidence of anything of that nature at the start of the employment relationship. Ms Robinson claimed that as time went by, warning signs appeared. However, that was said to be in relation to (a) the Maninnen email, and (b) the Perrin meeting, and (c) the allegedly bullying behaviour by McCarthy. I rejected those arguments previously.
  7. [168]
    Ms Robinson sent a lengthy letter of complaint to Perrin (and other senior staff) on 25 October 2012, after she received a formal requirement to attend a disciplinary counselling meeting about her unsatisfactory work performance and conduct.[87]The letter complained about McCarthy but did not (a) raise any allegations that she had been bullied by her, or (b) say or suggest that she was suffering any psychiatric illness or effects from anything that McCarthy allegedly did or did not do (or at all), or that she was vulnerable to psychiatric injury or that her work or McCarthy were putting her at risk of such an injury, or that she was a person not of normal fortitude. Indeed, there was no evidence that Ms Robinson ever complained or suggested to anyone at Lorna Jane (either at the DFO store or anywhere else) that there was such a possibility.
  8. [169]
    Thirdly, Ms Robinson said that she reacted negatively to becoming aware on 20 November 2012 of McCarthy’s Facebook posts. Even if that were the case, it does not assist Ms Robinson because (a) as I concluded previously, Lorna Jane was not vicariously liable for those personal acts by McCarthy, and (b) in any event, once Lorna Jane became aware of those posts, it took immediate steps to have them removed and to discipline McCarthy and to remove her from any supervisory role concerning Ms Robinson.
  9. [170]
    Moreover, as discussed in [116], the negative psychiatric consequences which were claimed to flow from becoming aware of the Facebook posts necessarily implies that in the 10 days between that date and her going on stress leave on 1 December 2012, there was something more that Lorna Jane should have done that would have protected Ms Robinson. That “something more” was never articulated and was not the subject of any psychiatric evidence or of any submissions.
  10. [171]
    Fourthly, an employer is not expected to be a mind reader. Callinan J once said that the foreseeability test in Wyong Shire Council v Shirt “requires everyone to be a Jeremiah”[88](or prophet of doom). Even so, the law does not require an employer to suspect that an employee who does not show any signs warning of the possibility of psychiatric injury, is nonetheless at risk of such an injury.
  11. [172]
    In my view, Lorna Jane had no reason to suspect that Ms Robinson was (a) at risk of psychiatric injury, or (b) a person not of normal fortitude. There was no evidence of any express or implied warning signs or indications of any such risk or possibility.
  12. [173]
    I find that the risk of psychiatric injury here was not foreseeable.
  13. [174]
    Absent foreseeability, the question of whether any such risk would have been “not insignificant” does not arise for consideration.

Would warning and counselling McCarthy have protected Ms Robinson?

  1. [175]
    This question raises two distinct points.
  2. [176]
    First, if McCarthy had been acting in the way that Ms Robinson alleged, would appropriate workplace warnings and counselling have resulted in McCarthy’s changing her behaviour and not carrying on with conduct of that nature?
  3. [177]
    I am satisfied that the answer to that question is Yes. That is because of the evidence that Perrin and McCarthy gave. Perrin knew McCarthy well. They had worked together in South Australia before coming to Queensland. During cross-examination, Perrin expressly agreed with Mr O'Sullivan that if McCarthy’s alleged behaviour towards Ms Robinson had been brought to McCarthy’s attention, she (Perrin) would have expected McCarthy to have had insight into the situation and not to have carried on with that behaviour in the future.[89]For her part, McCarthy confirmed in cross-examination that if she had engaged in inappropriate behaviour towards Ms Robinson (which she denied) and that had been brought to her attention, she would have complied with her employer’s direction and “definitely stopped the behaviour”.[90]
  4. [178]
    Secondly, was there any medical evidence, for the Court to consider, that warning and counselling McCarthy would have protected Ms Robinson?
  5. [179]
    Dr Ursula Oertel (clinical psychologist) was called by Ms Robinson. She had seen Ms Robinson at her rooms on more than 40 occasions. Dr Oertel agreed (in cross-examination) that if Ms Robinson had not been bullied (as she said that she had been) while she was working at Lorna Jane, then (a) there “would have to be” some other explanation for her symptoms of depressive and anxiety disorder, and (b) it was probable that something trivial (or a series of trivial events) had occurred and she perceived them as a slight and then developed the subject symptoms.[91]
  6. [180]
    In light of Ms Robinson’s credibility and unreliability issues, Dr Oertel’s assessment does not support the proposition that removing the alleged McCarthy stressor (by warning and counselling her) would have protected Ms Robinson. That is because it would have required only some trivial event to have occurred to cause her to suffer the same symptoms.
  7. [181]
    Mr O'Sullivan relied on the evidence of Dr Garg (psychiatrist), who was called by Ms Robinson. In his fourth report dated 10 February 2017, he said that:[92]

“If you remove the significant stressors, there was no reason why the plaintiff would not have been able to continue working as she had done.”

  1. [182]
    The clear inference from Dr Garg’s opinion was that if the significant stressor were McCarthy, her discontinuing the inappropriate behaviour would have resulted in Ms Robinson’s being able to continue working as Lorna Jane’s store manager.
  2. [183]
    Dr Garg accepted that the “major component” of his assessment of Ms Robinson’s psychiatric condition was based upon the things that she told him.[93]However, during cross-examination on 23 May 2017, having become aware of Ms Robinson’s evidence from earlier in the trial, Dr Garg said that he was then “really struggling to know whether I have real facts or not.”[94]Shortly afterwards, the following exchange occurred:[95][emphasis added]

“HIS HONOUR: … And so with the progression of your four reports and your comment before about struggling, having regard to all of the answers that you’ve given in cross-examination to Ms Treston QC, where does that leave the state of your opinion?---I  would say that my opinion is questionable because the facts [on which] I’m basing my opinion are not very reliable.”

  1. [184]
    Dr Garg had become so sceptical about the reliability of Ms Robinson’s self-reporting of symptoms that he concluded that his own psychiatric opinion of her condition was “questionable”. Whilst Dr Garg was not asked (in cross-examination) if that caused him to reassess his view about the effect on Ms Robinson of the removal of the significant stressors, he did not need to be asked that question. His initial view was based upon his assessment of Ms Robinson’s psychiatric condition. Because that assessment became “questionable” due to Ms Robinson’s later-discovered unreliability, Dr Garg’s earlier view about the effect of the removal of stressors can be given very little weight.
  2. [185]
    Dr Chung (psychiatrist) was called by Lorna Jane. In cross-examination, Mr O'Sullivan asked Dr Chung whether it was correct to say that “once the stress is removed”, Ms Robinson’s “symptoms [of adjustment disorder] from the stressors will linger for longer” than most people in the community because she was “more vulnerable than most people”. Dr Chung answered that “[i]t’s a very hard question to answer”.[96]
  3. [186]
    However, Dr Chung was able to answer Mr O'Sullivan’s later question on the direct causation issue. It was put to him that if Ms Robinson had not been called names and treated in the way that she complained about, “she would not have developed a psychological illness”. Dr Chung replied that:[97]

“I can’t comfortably accept that, Mr O'Sullivan. The – the thing is somebody who is as vulnerable in her personality as Ms Robinson, anything that happens at work could be interpreted by her in a negative light, and the thing that’s been mentioned, these names I think that she – that she believes are the – the reason for her to feel uncomfortable, but there could be other reasons too, and it could arise at any time in her employment. It may have happened at that point in time, but it could happen at any time really at all, and with her personality vulnerability there’s no guarantee that she is going to be able to work there indefinitely even if things appear to be relatively uneventful. So to be – to be truthful, I can’t really say that – comfortably say that if that didn’t happen, she probably wouldn’t have developed a psychiatric condition.”

  1. [187]
    Dr Chung added that:[98][emphasis added]

“Unfortunately, with people who have a history – background history as severe as Ms Robinson, … when you put her under real test of day-to-day stress, interpersonal interactions, a person like Ms Robinson may interpret various things and environment as threatening, and I guess it all depends on how well she interprets it and how – how she perceives them to be. I would say that at that point, yes, she’s probably functioning well, but – but then given her past history, her level of functioning probably could deteriorate at any time.”

  1. [188]
    Therefore, Dr Chung was of the opinion that the removal of the so-called workplace stressor (McCarthy) would not necessarily have protected Ms Robinson because (like Dr Oertel) he thought that she could have developed her psychiatric condition at any time and quite independently of the things that allegedly happened at work.
  2. [189]
    Dr Arthur (psychiatrist) was called by Lorna Jane. He said that it was “difficult to know” what effect (if any) the removal of some stressors would have had upon Ms Robinson. That was because it depended upon (a) the context, (b) her perception and interpretation, (c) her mental state, (d) the severity of her personality disorder, (e) whether she had other coping strategies, and (f) how many other stressors she was undergoing at the time.[99]
  3. [190]
    It follows that the conclusion cannot be reached, on the evidence and on the balance of probabilities, that warning and counselling McCarthy would have protected Ms  Robinson.

Conclusion: Psychiatric injury claim fails

  1. [191]
    Ms Robinson failed to prove all of the applicable WCRA requirements, on the balance of probabilities. That means that she failed to prove the essential element of causation—and as a result, failed to prove her claim.
  2. [192]
    That completes the consideration of her case on liability with respect to her claim for the alleged psychiatric injury.

B. Physical injury

  1. [193]
    Ms Robinson’s claim in this regard was that whilst she was lifting and moving heavy boxes of stock at the DFO store on 10 October 2012 and again on 1 December 2012, she felt the sudden onset of perianal pain in her buttocks. That resulted in the appearance of a lump in her perianal area, which was diagnosed as thrombosed external haemorrhoids.
  2. [194]
    Ms Robinson underwent surgery for haemorrhoids (and other issues) in June 2013 and December 2013. She pleaded that since the surgery, she experiences urgency of micturition and of defecation. Those symptoms have persisted to the present time and interfere with her ability to engage in all activities including work.
  3. [195]
    Mr O'Sullivan submitted that:[100]

“[l]ifting a heavy awkward box or boxes caused [the physical injury]. The injury was caused by unreasonable and/or awkward lifting performed by the plaintiff.”

  1. [196]
    Lorna Jane denied that (a) the alleged incidents occurred, and (b) Ms Robinson suffered any injury. It also pleaded that (c) any boxes that Ms Robinson may have needed to lift or move were not heavy or awkwardly-shaped.
  2. [197]
    The two alleged incidents will now be considered.

10 October 2012

  1. [198]
    Ms Robinson said that (a) on that day, she lifted and moved (into the stock room) 60 to 100 boxes of stock, some of which weighed between 5kg and 10kg and others that she thought were up to 20kg, and (b) as a result, she sustained a thrombosed external haemorrhoid.
  2. [199]
    There are five reasons why those allegations should not be accepted.
  3. [200]
    First, the store had a designated full-time employee who was responsible for stock. That was Ms Alyce Clem. She had worked at the DFO store since November 2011. It was her job to attend to stock receival, storeroom management and visual merchandising.[101]Although Clem was on study leave (and not at work) on 10 October 2012, she gave evidence that there was never an occasion at the DFO store when 60 to 100 boxes of stock had to be moved in one day.[102]
  4. [201]
    Clem said that (a) “the stockroom was [her] baby”, and (b) it had not been “changed around” by the time that she returned to work on the morning of 11 October 2012, because she “would’ve noticed a massive – like, a big difference in the [stock] room just because that was my role”. She was pressed about that in cross-examination but insisted that “I would notice 10 boxes be [sic] moved, but not two.” She also said that the average weight of boxes of stock was 5kg to 8kg—but not up to 20kg because “[t]hat’s very heavy and I wouldn’t have been able to lift anything close to 20 kilos.”[103]
  5. [202]
    That evidence disputes (a) the weight of the boxes that Ms Robinson said that she lifted and moved on 10 October 2012, and (b) that any more than two boxes had been moved into and left in the stock room by the time that Clem arrived at work the next morning.
  6. [203]
    Secondly, the store rosters show that another employee, Ms Rebecca Roskam, and not Ms Robinson, worked the “stock shift” on 10 October 2012.[104]Ms Robinson did not clarify (a) why she, the store manager, rather than the store’s “stock shift” employee, allegedly had to lift and move all of those boxes on that day, or (b) why she did not have Roskam assist her with that task.
  7. [204]
    Thirdly, the medical evidence is to the contrary.
  8. [205]
    The first reference in any medical records to the alleged injury was contained in those of the Everton Plaza Medical Centre. Ms Robinson attended there on 13 October 2012. The records state that she:[105]

“has acute perianal haematoma – day 5 – wants drainage – s/e discussed – advised that can only remove a portion as been there 5 days”

  1. [206]
    On that evidence, the date on which Ms Robinson sustained the haematoma was 8 October 2012—namely 5 days before she attended the medical centre. DFO store records show that Ms Robinson did not work on 8 October. She worked on 9, 10, 11 and 12 October, took annual leave on 13 October (the day that she saw a doctor at the medical centre), was not rostered to work on 14 or 15 October and took two days of sick leave on 16 and 17 October 2012.
  2. [207]
    The likely sequence of events then was that Ms Robinson sustained the injury on 8 October, returned to work the next day (9 October) and worked that day and the next three days (10, 11 and 12 October). As the condition apparently had not subsided by 12 October, she went to the doctor the next day (13 October) and told the GP that she had sustained the injury five days earlier.
  3. [208]
    Dr J.B. Douglas AM (physician) examined Ms Robinson on 12 September 2014. His report (relevantly based upon Ms Robinson’s self-reporting of events) states that:[106]

“Her problems started on the 08/10/2012, when in the process of moving boxes, she experienced the sudden onset of perianal pain. This episode occurred at about midday on that particular day.”

  1. [209]
    The relevant Medicare notice of charge shows the date of injury in respect of the perianal haematoma as having occurred on 8 October 2012.[107]
  2. [210]
    Although the medical records sometimes refer to a perianal haematoma and sometimes to a perianal haemorrhoid, there was specialist medical opinion that those two terms (haematoma and haemorrhoid) are interchangeable.[108]
  3. [211]
    Fourthly, Ms Robinson’s (previously mentioned) credibility and reliability problems are also relevant here. Absent credible corroboration of her evidence (and there was none), I would not accept Ms Robinson’s version of events if they were disputed—as they are here.
  4. [212]
    The medical records show that the injury was sustained on 8 October 2012 and not on 10 October 2012. There was no evidence that anyone saw Ms Robinson lift or move 60 to 100 boxes on 10 October, or any corroboration that more than two extra boxes were present in the stock room on the next morning. There was no evidence that Ms Robinson complained to anyone (at work or anywhere else) on 10 October that she had just sustained an injury. However, there was evidence that she later told the doctors that she sustained the injury on 8 October 2012.
  5. [213]
    In my opinion, Ms Robinson’s evidence that she sustained the injury on 10 October 2012 was false.
  6. [214]
    Fifthly, Mr O'Sullivan submitted that:[109][emphasis added]

“Dr Douglas, Physician, concluded that the plaintiff probably suffered the thrombosis in an external haemorrhoid as a consequence of heavy lifting at work.”

  1. [215]
    However, that was not what Dr Douglas said. His evidence was not that it “probably” happened at work or that heavy lifting “probably” caused the perianal haemorrhoid. Rather, he said that it was “possible” that it did.[110]
  2. [216]
    A conclusion that something is a “possible” consequence of something else falls short of the requisite standard of proof. To succeed, Ms Robinson needed to prove those conclusions on the balance of probabilities. She failed to do so.
  3. [217]
    In any event, as Dr Douglas himself accepted, his opinions were wholly reliant upon the history as reported to him by Ms Robinson. Because of Ms Robinson’s credibility and reliability problems and the lack of corroboration, the accuracy of the history reported to Dr Douglas must also be treated with scepticism.
  4. [218]
    It follows that I also reject Ms Robinson’s evidence that she sustained the subject injury at work.

1 December 2012

  1. [219]
    Ms Robinson said that she was lifting and moving heavy boxes of stock in the stockroom on 1 December 2012 when she experienced further perianal discomfort and became aware of another lump appearing in a different part of her perianal area. She claimed that this injury was an aggravation of the injury on 10 October 2012.
  2. [220]
    There are four reasons why those allegations should not be accepted.
  3. [221]
    First, contrary to her evidence that she did so, there was no medical evidence that Ms Robinson sought any treatment from a doctor on 1 December 2012 or shortly after that. Instead, she went out with a friend on the evening of 1 December 2012 and stayed out until the early hours of the next morning. She attended a music festival later that day (2 December 2012). On 3 December 2012, she told Dr Julie O'Connell that she had been away for the weekend at a music festival, without her children, and had danced all night.[111]
  4. [222]
    Secondly, contrary to her evidence that she did so, the records of her medical examinations by Dr O'Connell on 3, 10, 13 and 20 December 2012 made no reference to Ms Robinson’s reporting of any alleged injury on 1 December 2012.[112]
  5. [223]
    Thirdly, Dr Douglas gave evidence that if Ms Robinson had sustained a perianal haematoma on 1 December 2012 and had not sought immediate medical treatment, the condition (a) would have subsided over a week or so, and (b) would not have been an aggravation of a previous injury, but rather a new injury.[113]Dr Douglas also said that the surgery that Ms Robinson later had (in 2013) for haemorrhoids was entirely unrelated to the perianal haematomas that she allegedly suffered at work in October and December 2012.[114]
  6. [224]
    Fourthly, because of (a) her credibility and reliability problems, and (b) the absence of any corroborative evidence from an employee at the DFO store (or from any other person) who may have seen Ms Robinson in apparent pain or discomfort or to whom Ms Robinson may have made a complaint, I would not be prepared to accept her version of what allegedly happened.
  7. [225]
    It should also be mentioned that although this alleged injury was accepted by WorkCover, claims made under that statutory workers’ compensation scheme are accepted on a no-fault basis. That is entirely different from a claim for damages which a plaintiff must prove in Court on the balance of probabilities. The acceptance of a claim by WorkCover does not constitute evidence of liability in this separate claim for damages.
  8. [226]
    I do not accept Ms Robinson’s evidence that she sustained the subject injury on 1 December 2012, or that she sustained the injury at work. In my view, that evidence was extremely unlikely to be true.

Disposition

  1. [227]
    It follows that Ms Robinson’s claim for damages (in respect of her alleged physical injuries) fails and will be dismissed.
  2. [228]
    Although that disposes of this aspect of the claim, it is appropriate that consideration also be given to the requirements of the WCRA which Ms Robinson would have had to establish, in the event that liability had been made out.

WCRA requirements

  1. [229]
    To succeed in her claim, Ms Robinson would have needed to prove, on the balance of probabilities, that (a) the risk of physical injury was foreseeable and not insignificant and that a reasonable person in Lorna Jane’s position would have taken precautions against the risk of injury, (b) the breach of duty was a necessary condition of the occurrence of the injury, and (c) it is appropriate for the scope of Lorna Jane’s liability to extend to the injury so caused: see sections 305B, 305D(1)(a), (b).
  2. [230]
    If Ms Robinson had been able to establish that she sustained the physical injuries in the way that she alleged, I did not understand it to be in issue that (a) the subject requirements of the WCRA would also have been established, and (b) the “counterfactual circumstance” advanced by Mr O'Sullivan was appropriate.[115]That hypothesis was that (a) Lorna Jane should have “ensured that the plaintiff was trained to lighten the load in the boxes as the dedicated store person knew from experience”,[116]and (b) lightening the load in the boxes would have prevented the occurrence of the injury.
  3. [231]
    Dr Andrew Bell (colorectal surgeon) said, relevantly, that it was unlikely that moving boxes weighing 6kg to 10kg could induce a perianal haematoma.[117]Presumably then, lightening the weight to about 5kg by removing some of the contents prior to lifting or moving the boxes would likely have prevented the occurrence of the injuries. Training Ms Robinson to have done that would have been a reasonable response to the relevant risk of injury which was presented on Ms Robinson’s version of events.
  4. [232]
    Dr Bell also said that Ms Robinson’s (a) urgency of micturition and of defecation were not caused by or medically related to the alleged lifting incidents of October 2012 or December 2012 or by the incision and evacuation of the perianal haematoma on 13 October 2012, and (b) surgery in June 2013 and December 2013 were not caused by or medically related to the alleged lifting incidents or the October 2012 surgery.[118]

Conclusion: Physical injuries claim fails

  1. [233]
    As discussed previously, Ms Robinson’s claim in respect of her alleged physical injuries failed to be established on the balance of probabilities. That completes the consideration of that aspect of her case.

III – Quantum

  1. [234]
    Although Ms Robinson’s claim failed (because liability was not proven), it is appropriate nonetheless to consider the quantum which would have been awarded if her claim had been established.
  1. Psychiatric Injury
  1. [235]
    Four medical witnesses gave evidence about this aspect of the case. Ms Robinson called Dr Oertel (clinical psychologist) and Dr Garg (psychiatrist). Lorna Jane called Dr Chung (psychiatrist) and Dr Arthur (psychiatrist).
  2. [236]
    Mr O'Sullivan accepted that there “probably” was an element of exaggeration on Ms Robinson’s part in her reporting of symptoms to the various doctors.[119]As will become apparent, that was an understatement.

Dr Oertel

  1. [237]
    Dr Oertel was the only medical witness to have seen Ms Robinson on a regular basis. She consulted with Ms Robinson on more than 40 occasions between 2013 and 2017. She said that over the years, Ms Robinson had complained about all manner of personal, family and financial issues which she claimed to have contributed to the depression and anxiety which she was suffering.[120]
  2. [238]
    In July 2016, Dr Oertel diagnosed Ms Robinson as suffering from five mental disorders: major depressive disorder (recurrent episode: moderate), generalised anxiety disorder, post-traumatic stress disorder, borderline personality disorder, and obsessive-compulsive personality disorder. Her diagnosis was based upon (a) Ms Robinson’s self-reporting of symptoms and of having been bullied while working at Lorna Jane, and (b) Dr Oertel’s analysis of the relevant psychometric assessments and collateral documentation.[121]
  3. [239]
    However, Dr Oertel also thought it appropriate to conduct detailed validity testing of Ms Robinson to determine if her self-reporting of symptoms was reliable. The resultant personality assessment inventory caused Dr Oertel to conclude that Ms Robinson “may not have” answered the testing in a completely forthright way. Ms Robinson’s scores for each of the depression, fears and anxiety indexes were (a) significantly outside of the parameters of a bona fide clinical patient, and (b) well above the levels at which they are regarded as invalid. For example, her depression index score was 108, whereas a score above 95 is regarded as invalid and one of 70 is the average for a person with depression. That was “unusual”, Dr Oertel reported. She said that there were three possible explanations for such significant elevations: Ms Robinson was (a) dishonest, or (b) exaggerating, or (c) quite intensely distressed.
  4. [240]
    There was no evidence that Ms Robinson was intensely distressed on any of her attendances on Dr Oertel.[122]Dr Garg did not record (in any of his reports) that Ms Robinson was experiencing “high levels of distress”. He agreed in cross-examination that if she had been doing so, he would have recorded it.[123]It was not put to Dr Chung or to Dr Arthur (in cross-examination) that Ms Robinson was intensely distressed when she saw them for the purposes of their specialist medical reports.
  5. [241]
    In the circumstances, the only reasonable conclusion is that Ms Robinson was (a) at best, exaggerating her symptoms when she saw Dr Oertel, or (b) at worst, untruthful in her self-reporting.

Dr Garg

  1. [242]
    Reference to Dr Garg’s evidence about his assessment and diagnosis of Ms Robinson was made earlier.[124]Dr Garg thought that Ms Robinson had been “less than truthful” with him about her self-reporting of symptoms. He said that he was “really struggling to know whether he had real facts or not” as a result of that.[125]Ultimately, he said that his own psychiatric opinion of her condition was “questionable” due to Ms Robinson’s later-discovered unreliability.
  2. [243]
    However, Dr Garg’s various pre-trial reports noted the alleged workplace bullying and how it had affected Ms Robinson. He thought that although she was predisposed to depression due to a family history of it, she had suffered a major depressive episode which required psychiatric care. Her prognosis was moderate. Her ability to work had been significantly affected by the workplace incident.
  3. [244]
    Mr O'Sullivan relied on those pre-trial reports.[126]He also submitted that:[127]

“[Dr Garg] confirms that she had a pre-existing disposition to psychiatric illness but that was not sufficient to cause psychiatric illness. He refers to the two factors of stress and insufficient protective factors. That’s the vulnerability issue of course. In the case, the plaintiff had vulnerabilities but the behaviour of the area manager was perceived as stressful by the plaintiff, and the protective factors were not sufficient to protect her from developing psychiatric illness.”

  1. [245]
    That may have been Dr Garg’s opinion before he was cross-examined by Ms Treston QC on day 5 of the trial. However, it was not his last word on the subject. At the conclusion of his cross-examination, the following exchange occurred:[128]

“HIS HONOUR: And all of that, Dr Garg, is subject to your comment to me earlier - your answer to my questions earlier that your opinion is questionable because of the facts on which you’re basing it are not very reliable?---That is correct.”

  1. [246]
    Mr O'Sullivan had no questions for Dr Garg in re-examination.
  2. [247]
    Contrary to Mr O'Sullivan’s submissions, it is not Dr Garg’s earlier opinions that are decisive for present purposes but rather his final statement—which expressed scepticism. Once Dr Garg became acquainted with the evidence that Ms Robinson had given earlier in the trial, he (a) said that it was “likely” that she had been “untruthful” before the trial,[129]and (b) acknowledged that his own previous opinions were “questionable” because they were based on Ms Robinson’s unreliable and less-than-truthful self-reporting. Consequently, Dr Garg’s earlier opinions can be given very little weight.

Dr Chung

  1. [248]
    Dr Chung saw Ms Robinson in March 2015.[130]He diagnosed her as suffering from (a) an adjustment disorder with anxiety and depressive symptoms, and (b) a mixed personality disorder. He thought that the alleged workplace bullying by McCarthy was the probable catalyst that caused her decompensation, but accepted that there may have been other contributing factors at the time. Dr Chung said that his opinions were “very largely” dependent upon Ms Robinson’s self-reporting.[131]
  2. [249]
    However, during the first interval (February 2017 to May 2017) in the trial, Dr Chung was provided with a transcript of Ms Robinson’s evidence and related exhibits. That material caused him to change his earlier opinions.
  1. [250]
    Dr Chung told Lorna Jane’s lawyers on 12 May 2017 (a file note of which was tendered at the trial) that (a) if he had had that evidence in March 2015, he would not have been able to make the diagnosis of an adjustment disorder because Ms Robinson would not have fulfilled the necessary criteria for that condition, (b) although Ms Robinson had (and still had) a mixed personality disorder, it was not caused by the alleged workplace bullying, (c) her mixed personality disorder was more likely to have been caused by the multiple traumatic events that had occurred in her life, and (d) he now considered that Ms Robinson did not decompensate after the alleged workplace events because she did not even have an adjustment disorder.[132]

Dr Arthur

  1. [251]
    Dr Arthur diagnosed Ms Robinson in March 2013 as having an adjustment disorder. However, once he was acquainted during the trial with the evidence that Ms Robinson had already given, he also changed his earlier opinion.
  2. [252]
    He said that Ms Robinson’s actual functioning differed markedly from her reported functioning. For example, her ability to attend a large music concert just days after leaving Lorna Jane was “totally inconsistent” with her reported history. It was “extremely unlikely” that she would have been able to do that if she had the symptoms of which she complained. Dr Arthur concluded that (a) she was likely overstating her symptoms and degree of impairment and understating her degree of functioning, and (b) she probably did not have an adjustment disorder (with mixed anxiety and depression) then.[133]Rather, he thought that Ms Robinson’s clinical presentation was more consistent with an underlying mixed personality disorder which had existed prior to the alleged events at work. He noted that a person with that type of disorder ordinarily exhibits traits of excessive emotionality, histrionic, narcissistic and aggressive behaviour, with a sense of entitlement.[134]
  3. [253]
    Dr Arthur identified Ms Robinson as a person who might perceive as an unjust criticism an observation in a workplace which other employees may perceive as a mere observation. He described that as an issue of perception versus reality.[135]
  4. [254]
    Mr O'Sullivan submitted that Dr Arthur concluded that (a) Ms Robinson’s pre-existing personality disorder was “triggered” by, and (b) she reacted adversely to, the alleged workplace bullying that she endured at Lorna Jane.[136]However, that was not what Dr Arthur said. The relevant passages of cross-examination were as follows:[137][emphasis added]

“MR O'SULLIVAN: Doctor, … [i]f she did have a person – a mixed personality disorder, can I put it to you that the bullying that she perceived in the workplace would have aggravated that condition?---I don’t think [indistinct] as I was trying to explain, that the condition is not one of being aggravated, it’s being one of being triggered, if you will. So people have a vulnerability towards certain triggers which will then result in an emotional reaction. So whilst I wouldn’t call it an aggravation, I would say that it had triggered a cascade of probably maladaptive coping strategies.

All right. So I now put it to you that the perceived bullying that she described to you triggered the mixed personality disorder to the extent that it caused her to have difficulties in the workplace. What do you - - -?---I think she already had difficulties in the workplace.

But this would have made it worse?---It certainly would have inflamed the situation, yes.

And it, can I put it to you, inflamed it to the extent that she was unable to continue working with Lorna Jane. What do you say to that proposition?---I don’t agree with that. I think she chose not to continue to work with Lorna Jane. I wouldn’t say she was unable to.”

  1. [255]
    As can be seen, the proposition which Mr O'Sullivan put to Dr Arthur was not that the alleged workplace bullying had triggered Ms Robinson’s disorder and caused her to have difficulties in the workplace, but that her perception of bullying had done those things. A person’s perception of being bullied—although no bullying had occurred, is quite a different concept from a case of actual bullying. In any event, the so-called perception case (even if such a case were recognisable at law) was not pleaded and therefore does not arise for consideration.

Summary

  1. [256]
    The medical opinions discussed above show that Ms Robinson:
  1. (a)
    was exaggerating her symptoms or being untruthful in her self-reporting to Dr Oertel and to Dr Chung;
  2. (b)
    was unreliably and less-than-truthfully reporting her symptoms to Dr Garg;
  3. (c)
    was overstating to Dr Arthur her symptoms and degree of impairment and understating her degree of functioning;
  4. (d)
    never had a work-induced adjustment disorder; and
  5. (e)
    suffers from a pre-existing mixed personality disorder which is unrelated to her work at Lorna Jane.
  1. [257]
    I accept that evidence and find accordingly.

Assessment

  1. [258]
    In those circumstances, the following passage from the Court of Appeal’s decision in Collings v WCB [1997] QCA 224 is apposite. McPherson JA (with whom Davies JA and Moynihan J agreed) said that:[138]

“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.”

  1. [259]
    Very recently, the Court of Appeal said that for the Collings principle to apply, each of two factors must be present: they are that (a) a plaintiff’s evidence is fabricated, and (b) the findings of credit led to a total rejection of the evidence supporting that claim: see Berhane v Woolworths Ltd [2017] QCA 166, at [108].
  2. [260]
    In my opinion, for the reasons set out previously, those factors exist in the present case: (a) Ms Robinson’s evidence at the trial and her statements to her medical consultants were (variously) unreliable, inconsistent, false, untruthful, exaggerated and/or lacking in credibility, and (b) that resulted in my rejecting the evidence supporting her claim. On that basis, I am satisfied that the Collings principle applies.
  3. [261]
    McPherson JA emphasised the “impossible task” of attempting to assess such a plaintiff’s condition (and therefore the quantum of her damages) by reference to what she and others might have said if she had told the truth. That invites a search for any evidence which supports a credible claim that could have been made.
  4. [262]
    Dr Arthur was prepared to accept that to the extent that Ms Robinson’s underlying personality disorder had been triggered by some events at Lorna Jane, such trigger might last minutes, hours or days.[139]That opinion might have supported a week or so off work (presumably, on sick leave) if there had been some credible evidence that a negligent act by Lorna Jane had effected such a trigger—but there was no such evidence.
  5. [263]
    General damages: Dr Chung initially assessed Ms Robinson as having a 5% PIRS rating under schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2003 (WCRR). However, after he  reassessed her condition in the light of her evidence at the trial, Dr Chung reduced her PIRS rating to 0%. That rating results in an item 13 (minor mental disorder) ISV of between 0 and 1, which yields an award of between $0 and $1,270. Dr Garg’s and Dr Arthur’s final opinions did not assess Ms Robinson’s PIRS rating. As discussed previously, those opinions were not favourable to her case. In all of the circumstances, I would not have made any award for general damages.  
  6. [264]
    Economic loss: Lorna Jane’s national sales manager Ms Perrin said (and it was not disputed by Ms Robinson)[140]that it was likely that Ms Robinson’s employment with Lorna Jane would not have continued past her probationary period which ended on 13 January 2013.[141]That was because of (a) the staff complaints which had been made about her, (b) the poor (and declining) DFO store sales figures, and also (c) the fact that she had been disciplined in relation to performance issues. Mr O'Sullivan argued that there was a conspiracy at Lorna Jane to ensure that Ms Robinson did not remain in her employment. That submission cannot be accepted because it was not pleaded and was not put to Ms Perrin. In any event, many companies initially engage staff on a probationary period and do so for very sound reasons—because if things do not work out as planned, the employee may be, as it were, “let go”. Surely that is good business practice.
  7. [265]
    Ms Robinson’s future claim is for $737.37 per week nett for the next 27 years. Her pre-Lorna Jane employment history comprised some part-time work only: $318 gross in the 2010 financial year (FY), $9,036 gross in FY 2011 and $1,340 gross in FY 2012. That equates to an average of $69 per week gross over those three financial years. She also received (and still receives) a Centrelink pension. During her 20 weeks working for Lorna Jane, she earned $800 per week nett. Dr Oertel, Dr Chung and Dr Arthur all thought that Ms Robinson was capable of returning to work in mid-2013, if not before.[142]Dr Garg also said that Ms Robinson would be capable of working in her pre-injury positions for about 20 hours per week.[143]
  8. [266]
    Thus, the evidence shows (and I find) that Ms Robinson (a) would not have continued working for Lorna Jane past January 2013, and (b) could have continued working in her pre-Lorna Jane type of work for 20 hours per week.
  9. [267]
    On that evidence, no award for past or future economic loss would have been made.
  10. [268]
    Loss of employer’s superannuation contributions: Because no award for economic loss damages would have been made, it follows that no award for (past or future) loss of the employer’s superannuation contributions would have been made.
  11. [269]
    Special damages: WorkCover Queensland paid Ms Robinson $53,413.73 for past hospital, medical, rehabilitation and travelling expenses. Lorna Jane suggested that the WorkCover payments could be regarded as past special damages and then treated as money in and money out. Although that was a pragmatic approach, the onus was on Ms Robinson to articulate which of those amounts should be treated as recoverable in her damages claim. That task was not attempted. Absent specific evidence, it would not be appropriate for the Court to speculate about which items might be recoverable. Therefore, I would not have made any award for past special damages.
  12. [270]
    Mr O'Sullivan submitted that Ms Robinson’s inpatient treatment at a Gold Coast psychiatric clinic in 2014 was necessary because of the events which allegedly occurred at Lorna Jane in 2012. That submission cannot be accepted. That is because of the three psychiatrists who gave evidence at the trial, only Dr Chung and Dr Arthur addressed the point and they said that they were not prepared to accept it.[144]
  13. [271]
    Dr Chung’s final report said that (a) Ms Robinson does not requires any future psychological or psychiatric treatment because of her alleged work-caused adjustment disorder, and (b) if she requires further treatment, it is not because of any work-related illness but rather because of her pre-existing personality disorder.[145]There was no other evidence in the other doctors’ final reports on this point. In the circumstances, I would not have made any award for future special damages.
  14. [272]
    Conclusion: Ms Robinson failed to prove, by credible evidence, that any award of damages for her psychiatric injuries claim should have been made.

B. Physical Injury

  1. [273]
    I have already rejected Ms Robinson’s evidence about how she allegedly sustained the injuries to her perianal region. I thought that her evidence was false (the first injury) and extremely unlikely to be true (the second injury). That resulted in my rejecting her claim. There was no credible evidence which supported it.
  2. [274]
    Again, this aspect of Ms Robinson’s case presents the Court with the “impossible task” to which McPherson JA referred in Collings. However, the relevant medical evidence enables this task to be addressed very briefly.
  3. [275]
    Dr Douglas said that “there is no evidence of any whole person permanent impairment in relation to the perianal haematoma”.[146]Dr Bell did not provide an assessment for Ms Robinson’s physical injury.
  4. [276]
    There is no item under schedule 9 of the WCRR that deals with perianal haematomas. Section 112D(3) of the WCRR provides that when there is no item for a particular injury, the court “may have regard to” the ISV ranges prescribed for other injuries. Mr O'Sullivan submitted that (a) item 72 (moderate bowel injury) with an ISV range of 7 to 18 was appropriate, and (b) an ISV of 10 should be used. Item 72 states that an ISV at or near the bottom of the range (presumably, 7 to 9 or 10) will be appropriate if, relevantly, the injury required an ileostomy or colostomy. Those procedures involve more significant surgical intervention than the treatment for haemorrhoids. The following item in the schedule (item 73) relates to minor bowel injury, but it applies to an injury causing tears to the bowel. It must be remembered that the medical evidence was that (a) Ms Robinson’s condition would have subsided naturally within a week or so, and (b) the 2013 surgery was entirely unrelated to the injuries which she allegedly suffered at work.[147]In the circumstances, I am not satisfied that the ISVs for either item 72 or item 73 are relevant for present purposes. No other items were suggested for the Court’s consideration.
  5. [277]
    Dr Douglas and Dr Bell each said that (a) Ms Robinson would have required only one or two days to recover (presumably, on sick leave) before returning to work, (b) there was no ongoing impairment from Ms Robinson’s alleged physical injuries, (c) any persistent symptoms are not related to the development of the perianal haematoma or its subsequent treatment, and (d) there is no need for any future treatment in respect of those alleged injuries.[148]
  6. [278]
    Conclusion: In those circumstances, there is no basis upon which any award of damages could have been made for the physical injuries claim.

IV - Final Disposition

  1. [279]
    Ms Robinson failed to prove each aspect of her claim. It follows that her claim will be dismissed.

V - Orders

  1. Plaintiff’s claim dismissed.
  2. Judgment for the Defendant.
  3. I will hear the parties as to costs.

Footnotes

[1] Ex 43.

[2] T11-61, LL32-38.

[3] T6-47, LL9-10.

[4] T6-50, 51, 52, 53.

[5] T11-67, LL27-30.

[6] T6-85, LL10-13.

[7] T6-85, LL19-21.

[8]T6-48, LL6-9.

[9]T11-64, LL15-22.

[10] T6-35, LL16-42.

[11] T11-67, LL27-30.

[12] T11-85, LL18-19.

[13] T11-85, LL45-46.

[14] T11-106, LL13-15.

[15] T5-86, 87, 88, 89.

[16] T2-81, LL1-2, 44-T2-82, L1.

[17] T2-80, LL6-46; T2-82, LL3-10.

[18] T11-92, LL34-36.

[19] Ex 1, vol 1, tab 3, p 37.

[20] T5-88, LL45-47; T5-91, LL32-33; T5-94, LL18-19.

[21] T2-109, LL43-44.

[22] Confirmed by Mr O'Sullivan: T5-4, LL36-47.

[23] T2-107, LL24-27.

[24] Ex 1, vol 1, tab 1, p 9; Ex 1, vol 4, tab 45; T2-104, 106, 109.

[25] T2-110, LL6-17; T4-95, LL29-33.

[26] T2-107, L35.

[27] T11-92, LL29-30.

[28] T2-61, LL29-33; Ex 1, vol 1, tab 3, p 40.

[29] Ex 1, vol 1, tab 7, p 93.

[30] T2-62, L45-T2-63, L8.

[31] T6-5, L31-T6-8, L39.

[32] T9-35 to T9-37.

[33] T9-36, L45-T9-37, L4.

[34] T10-32, LL1-5.

[35] Ex 1, vol 1, tab 7, p 94.

[36] T4-61, L40-T4-68, L19.

[37] Ex 36, p 22.

[38] T4-63, L5.

[39] T4-64, LL40-41.

[40] T4-63, LL7-8.

[41] Ex 36, pp 12-16.

[42] T6-3, LL16-18.

[43] At [81].

[44] At [80].

[45] T11-52, LL33-36.

[46] T11-57, LL26-27, 46-T11-58, L1; T9-15, LL35-45.

[47] T11-57, LL1-2.

[48] T6-116, LL20-26; T6-117, LL20-35.

[49] T4-113, LL43-44; T4-124, LL36-46.

[50] T8-4, LL7-14; T8-33, L38-T8-34, L3.

[51] T1-55, LL5-8.

[52] Ex 6.

[53] T2-54, LL22-24.

[54] T1-53, LL43-44.

[55] T8-23, LL22-23; T8-26, LL26-27; T8-27, LL21-22.

[56] T8-27, LL45-46.

[57] T8-28, LL21-22.

[58] T8-22, L42-T8-24, L7-14.

[59] T6-67, L7-T6-68, L15.

[60] T11-76, LL22-46.

[61] At 380.

[62] At 381-2.

[63] At 381.

[64] T2-18, LL33-39; T2-19, LL1-3; T2-20, LL3-9.

[65] See [168].

[66] Ex 21.

[67] T3-85, LL9-21.

[68] T3-86, LL12-13.

[69] Ex 35.

[70] T8-9, LL13-23; T8-29, LL2-3.

[71] T11-77, L41-T11-79, L27.

[72] T3-84, LL6-12.

[73] T11-73, L39.

[74] T1-29, L3-T1-30, L5.

[75] The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, at [43], [44]; Woolworths Ltd v Perrins [2016] 2 QdR 276 (CA), at [149]-[151], [173].

[76] Para 18(e).

[77] T11-57, LL29-32; T11-58, LL1-3; T11-67, LL36-39; T11-73, LL38-42; T11-102, LL9-13; Further Outline of Argument, paras 5 & 6.

[78] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.

[79] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, at [19].

[80] Ibid at [35].

[81] Ibid at [24].

[82] T11-101, LL21-22.

[83] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, per Callinan J at [57].

[84] Ibid at [34].

[85] T6-16, LL41-46.

[86] Ibid at [36].

[87] Ex 33.

[88] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, at [54].

[89] T6-93, LL17-43.

[90] T8-76, LL28-T8-77, L20.

[91] T5-27, L13-T5-28, L32.

[92] Ex 48, para 4.

[93] T6-15, LL15-16; T6-11, LL24-25.

[94] T6-11, LL27-28.

[95] T6-15, LL40-44.

[96] T9-19, LL12-23.

[97] T10-15, LL15-25.

[98] T10-15, L40-T10-16, L4.

[99] T10-51, LL11-34.

[100]Outline of Argument, para 44.

[101] T7-80, L41-T7-81, L2.

[102] T6-84, LL1-2.

[103] T6-84, L42-T6-85, L5; T6-87, LL1-12; T6-95, LL6-8; T6-94, LL18-19.

[104] Ex 3.

[105] Ex 1, vol 2, tab 12, p 459.

[106] Ex 1, vol 1, tab 2, p 24; T10-15, L40-T10-16, L4.

[107] Ex 10, vol 1, tab 7, p 52.

[108] T6-25, LL21-26.

[109] Outline of Argument, para 45.

[110] T6-27, LL9-44.

[111] Ex 35, pp 20-23.

[112] Ex 1, vol 1, tab 8, pp 149-152.

[113] T6-28, LL15-18; T6-29, LL 30-37.

[114] T6-30, LL1-21.

[115] Outline of Argument, para 50.

[116] Ibid.

[117] Ex 49, p 3.

[118] Ex 65.

[119] T11-86, LL42-45.

[120] T5-30, L25-T5-31, L39.

[121] Ex 1, vol 1, tab 9, pp 235-246.

[122] T5-8, LL21-34; T5-10, LL1-2, 36-T5-11, L4; T5-12, L4; T5-13, LL1-11; T5-14, LL10-19, 31-38; T5-22, LL9-11; Ex 1, vol 1, tab 9, pp 224, 231.

[123] T6-13, LL19-28.

[124] At [64], [72], [183], [184].

[125] T6-11, LL27-28.

[126] Outline of Argument, pp 5-6.

[127] T11-101, LL17-23.

[128] T6-22, LL8-10.

[129] T6-9, LL25-26.

[130] Ex 1, vol 1, tab 4, p 63.

[131] T10-21, LL5-39.

[132] Ex 79.

[133] Ex 79, 83; T3-1 to T3-26; T4-55 to T4-76; T10-30, LL35-45; T10-32, LL1-5.

[134] Ex 82.

[135] T10-29, LL22-29.

[136] Outline of Argument, p 10.

[137] T10-43, L46-T10-44, L47.

[138] At pp 7-8.

[139] T10-46, L32-T10-47, L20.

[140] Outline of Argument, para 21.

[141] T6-74, LL12-46.

[142] T5-32, L34-T5-33, L12; Ex 79, p 3; Ex 82.

[143] T6-21, L44-T6-22, L4.

[144] T10-10, L35-T10-11, L2; T10-52, LL1-15.

[145] Ex 79, p 3.

[146] Ex 1, vol 1, tab 2, p 31.

[147] See [223], [232].

[148] T6-26, LL21-25; Ex 49, p 5; Ex 1, vol 1, tab 1, p 31.

Close

Editorial Notes

  • Published Case Name:

    Robinson v Lorna Jane Pty Ltd

  • Shortened Case Name:

    Robinson v Lorna Jane Pty Ltd

  • MNC:

    [2017] QDC 266

  • Court:

    QDC

  • Judge(s):

    Koppenol DCJ

  • Date:

    03 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Berhane v Woolworths Ltd [2017] QCA 166
2 citations
Jump To
Cite 1 - [2017] QCA 166
Cite 2 - [2017] QCA 166
Collings v Workers' Compensation Board of Queensland [1997] QCA 224
2 citations
Jump To
Cite 1 - [1997] QCA 224
Cite 2 - [1997] QCA 224
Corporation of the Synod of the Diocese of Brisbane v Greenway[2018] 1 Qd R 344; [2017] QCA 103
2 citations
Jump To
Cite 1 - [2017] QCA 103
Cite 2 - [2017] QCA 103
Deatons Pty Ltd v Flew (1949) 79 CLR 370
3 citations
Jump To
Cite 1 - (1949) 79 CLR 370
Cite 2 - (1949) 79 CLR 370
Cite 3 - (1949) 79 CLR 370
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
8 citations
Jump To
Cite 1 - (2005) 222 CLR 44
Cite 2 - (2005) 222 CLR 44
Cite 3 - (2005) 222 CLR 44
Cite 4 - (2005) 222 CLR 44
Cite 5 - (2005) 222 CLR 44
Cite 6 - (2005) 222 CLR 44
Cite 7 - (2005) 222 CLR 44
Cite 8 - (2005) 222 CLR 44
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134
3 citations
Jump To
Cite 1 - (2016) 258 CLR 134
Cite 2 - (2016) 258 CLR 134
Cite 3 - (2016) 258 CLR 134
Woolworths Limited v Perrins[2016] 2 Qd R 276; [2015] QCA 207
2 citations
Jump To
Cite 1 - [2016] 2 Qd R 276
Cite 2 - [2016] 2 Qd R 276
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
2 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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