Written by Peter CarterAugust 29, 2013
In the first of three psychiatric injury decisions delivered in August – which speak to all the key elements of duty, foreseeability, causation and damage – electrical goods distributor AME Products has successfully defended an employee claim from a shop floor assault because it had no “reason to anticipate misconduct” of another employee.
Michael Polls filed in his claim for a psychiatric injury arising from an August 2010 assault that occurred just five weeks after he started working at the AME Brendale centre. Although recruited by Stephen Gell over a beer at the local RSL club, Polls found him “aggressive, loud and intimidating”. In a confrontation over a goods damaged-in-transit customer complaint, Gell – a valued employee – was alleged to have punched Polls to the ground.
The plaintiff’s liability theory was that the employer should have been aware of Gell’s demeanour and have terminated him prior to the incident. Among other things, it was claimed that AME had conveniently terminated Gell in the prior year to allow him to serve a short prison term for assaulting or obstructing police while on a suspended property-related sentence. He was re-employed by AME 10 weeks after the termination.
Polls succeeded in establishing that Gell’s earlier termination would have prevented his injuries but the court was not satisfied that “so much of the conduct as the defendant must be taken or been aware of” should be held to have put AME (who knew nothing of the prior criminal history) on notice that Gell’s presence constituted a foreseeable risk of injury.
While satisfied that Gell was “a loud assertive and demonstrative individual with firm views about how things should be done”, the court thought that much of the plaintiff’s account of Gell’s prior aggressive behaviour, “was magnified”.
Polls failed in his claim by failing to show his employer should have taken earlier preventative action.
The same day the Polls decision was published, the Court of Appeal reversed a lower court ruling that denied Jennie Wolters $364,000 as a result of a single incident of managerial abuse because she failed to show an earlier reprimand of her tormentor, although clearly warranted, would have prevented the event.
An operations director at the University of the Sunshine Coast had incorrectly castigated her for a performance lapse during a university power outage in March 2008 and later made things worse by devising further false accusations.
Ms Wolters attempted to explain what she had been doing but the manager did not permit discussion and was witnessed by other staff waving his arms erratically and yelling, “Get the bloody hell out of there”, before ordering her to get on with her work and storming off.
A similar incident of aggression had occurred in December 2007 causing another staff member “debilitating depression”. The trial judge found that the university had failed to appropriately reprimand its operations director at that time.
But the court was also of the view that Ms Wolters had failed to prove that such disciplinary action – had it been taken – was likely to have prevented the repetition of such conduct just three months later.
He dismissed the claim after a five day trial in October 2012.
On appeal the appeal judges ruled it was erroneous to require the plaintiff to establish that her March 2008 dressing down would have been prevented by appropriate earlier counselling.
Rather, the plaintiff having proved the occurrence of the prior incident, it was up to the Judge himself to assess the likelihood of the success of such disciplinary action.
It was abundantly clear to the Court of Appeal that, had the earlier incident been properly investigated, it would have been understood by the manager that acting without first ascertaining the true facts was a serious behavioural deficiency.
A reprimand associated with that investigation would likely have required the miscreant to “check his facts first before criticising other staff members” and that any warranted criticism should be made “calmly, rationally and courteously” rather than aggressively.
Rather than remitting the matter for retrial, the appeal court – considering itself “in as good a position as a primary judge to reach an ultimate conclusion” – entered judgement in favour of Ms Wolters for the amount that had been assessed in the lower court.
A week earlier, the Supreme Court delivered its judgement in another psych injury claim arising out of exposure to a culture of “racially oriented jokes and banter” at the Acacia Ridge factory of Pipemakers Australia.
Michael Gregonhi – the only person of Middle Eastern descent in a multinational workforce – alleged his employer was aware that such conduct was commonplace and had failed to develop and implement a system to prevent it.
The particular incident out of which the claim arose occurred in November 2009 when co-workers had positioned in the lunchroom, a mocked-up toilet made from scrap PVC and scrawled a racist obscenity directed to him on the seat.
Shortly after two workers “wearing Ku Klux Klan-like masks” taunted him racist threats. The court found “such grossly offensive conduct in the workplace” to be totally unacceptable and to have constituted bullying and harassment.
Pipemakers’ failure to take action to stop it “constituted a breach of the relevant duty of care” on its part. However, his Honour was of the view that – because the plaintiff had never raised concerns – Pipemakers could not be expected to appreciate Gregonhi “was at risk of psychiatric injury from racist bullying and harassment”.
He had actively participated in the racially offensive banter, to an extent that “went far beyond” participation that could be motivated merely by “the desire to be accepted”. Introducing himself to fellow employees as “the Arab”, Gregonhi regularly told jokes referring to his ethnicity and frequently role-played “the use of a pipe replicating a bazooka”.
Not only did the court regard the injury as unforeseeable for the above reason, it reasoned – taking a poor view of the plaintiff’s credibility overall – that on the balance of probabilities he had not suffered anything that could be considered a depressive disorder or post-traumatic stress disorder.
The final sting in the tail came in the form of an assessment of damages at below the amount of the WorkCover refund of $91,000. “Accordingly, even if the plaintiff had succeeded on liability, he would have failed to recover damages and his claim would have been dismissed in any event”.
Gregonhi v Pipemakers Australia Pty Ltd  QSC 198 Brisbane Boddice J 9/08/2013