Workers’ Compensation and Workplace Bullying


Kott Gunning acted for Riverton in the recent District Court decision of Wilson v Riverton Rossmoyne Bowling and Recreation Club Inc [2015] WADC 54. This matter involved a claim for damages for psychiatric injury caused by workplace bullying.

The plaintiff worker, Ms Wilson, had been employed as a casual barmaid for Riverton since approximately March 2007. As the name suggests, Riverton carried on business as a bowling club and recreation centre, which included a liquor licence.

Ms Wilson alleged that on 11 December 2008, she was verbally abused and exposed to threatening behaviour from a specific customer, which caused her to suffer a psychiatric condition. She also alleged that for about 12 months prior to that incident, her employment had imposed undue stress and anxiety on her. Ms Wilson further alleged that despite these alleged events being brought to Riverton management’s attention, the behaviour continued and Riverton failed to take disciplinary action against the offensive customer, or suspend abusive customers from service generally.

Ms Wilson claimed Riverton owed her a duty of care in tort and was in breach of its statutory duty pursuant to the Occupational Safety and Health Act 1984. She also claimed Riverton breached its contractual obligations, failed to maintain a safe system of work and did not take all reasonable care for her safety.

Riverton denied Ms Wilson’s allegations in their entirety and pleaded that appropriate action was taken and at no time had they breached any of their duties.

Significant factual and witness evidence was led by both parties. The medical evidence was quite brief in comparison.

Psychiatrist, Dr Ng prepared a special evaluation in August 2010 in which he estimated Ms Wilson’s level of Whole Person Impairment (WPI) at 17%. After viewing surveillance footage in December 2012, Dr Ng still considered Ms Wilson’s condition had not reached maximum medical improvement , however, reduced his estimated her future WPI to 8%. He commented that her current WPI was greater than 8%.

Two days later, Dr Ng estimated Ms Wilson’s current WPI at 9% before, making a final assessment on 28 April 2014 of 19%.

After reviewing the surveillance footage and considering Ms Wilson’s level of activity and mental status, Dr Terace assessed Ms Wilson’s WPI at 0%. He believed Ms Wilson either does not suffer any psychological trauma as a result of her employment or if she does, it is of mild severity.

Both Dr Ng and Dr Terace considered that upon considering the surveillance footage, the veracity of Ms Wilson’s prior presentation was in question.

Decision

His Honour did not find Ms Wilson’s to be a truthful witness and had exaggerated the majority of her allegations. This no doubt greatly affected the outcome of the matter. He did not accept her evidence as to the period over which she said she was abused or the nature and frequency of the abuse which she said took place and When Ms Wilson’s evidence was in conflict with evidence of witnesses called by Ms Wilson, his Honour preferred that of the witnesses.

His Honour dismissed the claim in its entirety finding:

  • Ms Wilson had not sustained mental harm as a result of conduct for which Riverton was responsible;
  • Ms Wilson’s her injury was not foreseeable;
  • Riverton did not breach its duty of care towards Ms Wilson; and
  • Riverton was not in breach of any of the express or implied terms of the employment contract.

In regards to WPI, his Honour preferred the medical evidence of Dr Terace and was not satisfied Ms Wilson had reached the required threshold.

Given his Honour’s credibility findings concerning Ms Wilson, it was impossible for him to make any provisional assessment of damages.

The decision clarifies the principles to be applied in cases involving the fairly common scenario, where a claimant is upset by the nature of the sanction imposed by an employer.

For more information on this update or any insurance matter please contact partner Ashley Crisp or lawyer Ken Grunder on (08) 9321 3755.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.