Opinion

Linton Sayer v Melsteel in the Supreme Court of Victoria, June 2017

6th Jul 2017

The facts

The plaintiff had been in continuous employment since the age of 16. He commenced employment with the defendant, as a boilermaker, in 2006. As and from 2008, Mr Savage became his supervisor and problems started to occur. The following is a summary of the key events:

  • January 2009: Co-workers taunted Mr Sayer. One said they would “punch his f---ing face in”. The plaintiff spoke to Mr Savage about these taunts. The plaintiff alleges that Mr Savage pushed him and said some words to him that were less than cordial. A claim for psychiatric injury, naming Mr Savage as the bully, was made and accepted. The plaintiff returned to work within four days. It is at this time that the plaintiff commenced consulting his GP about the bullying at work. The plaintiff continued to be supervised by Mr Savage. SayerJanuary 2009: Co-workers taunted Mr
  • October 2009: A dispute occurred between the plaintiff and co-workers. The plaintiff complained to the OH&S representative and expressed to him that he was feeling upset. A mediation was arranged. The plaintiff attended that meeting and was told to leave within five minutes. 
  • July 2010: The plaintiff’s mobile phone was stolen and he was made to drive to a remote location and collect it from two co-workers who said they found it. 
  • August 2010: Mr Savage was upset at the plaintiff’s alleged slow work pace. Mr Savage walked into the plaintiff’s welding bay and allegedly struck him across the face three times. The plaintiff presented the next day at the doctors with a fat lip and neck pain. He made a WorkCover claim – liability was strenuously denied and then accepted at the doors of the Magistrates Court.  Liability was accepted for his neck and psychiatric injury.

The plaintiff’s employment was terminated in September 2010. The plaintiff made a Police report about the August 2010 assault and charges were laid against Mr Savage. These charges were subsequently dropped. 

Between 2010 and 2017 the plaintiff underwent six electroconvulsive therapy (ECT) treatments, neck surgery and, as and from 2010, was in regular contact with treating psychiatrists, psychologists and pain management physicians. The plaintiff has consistently admitted to frequent marijuana use. The plaintiff is prescribed a raft of strong medications in respect of both his psychiatric and psychological conditions. There is no history of a prior psychiatric injury.

The trial 

A serious injury certificate was granted for pain and suffering and economic loss. The defendant made no offers. The plaintiff made a counter-offer of $400,000 plus keep. The matter was set down for hearing in May 2017 in the Supreme Court of Victoria with an estimated duration of 20 days. 

Counsel 

Three days prior to the hearing I was informed by the QC that he would no longer take the brief, as it had too many difficulties. I then physically took myself to the chambers of three different QCs who said they would meet with me to hear me out as to why it was a winnable case – all three listened to me for varying periods of time and then rejected the brief. I then made more than ten calls to QCs begging them to take the brief. I received polite “no”s. 

Two days prior to the hearing, Mr Ron Meldrum QC said that he would take the brief on a No Win No Fee basis. Junior counsel was Mr Sascha Dawson.

The plaintiff’s case

  • As at 2009, the defendant was on notice of the plaintiff’s psychiatric injury. It should have appreciated that there was a foreseeable risk of further psychiatric injury. By not taking any steps to address the workplace behaviour or remove the plaintiff from Mr Savage’s supervision, the employer breached its duty of care to the plaintiff. 
  • Mr Savage was a bully and the defendant was vicariously liable for his actions. 

The defendant’s case 

  • There was no bullying. The plaintiff was never assaulted by Mr Savage – it simply did not happen. The plaintiff was fine after January 2009 and returned to work. 
  • It argued contributory negligence: it said that the plaintiff failed to notify the defendant of his injury and by his own aggressive behaviour, he was the bully. In its closing, the defendant abandoned its claim for contributory negligence. 

The witnesses

The plaintiff called four lay witnesses (the mother, the neighbour, the friend who assisted him to keep a diary and the former co-worker who said he witnessed the assault and knew Mr Savage to be a bully). Three medical witnesses gave evidence for the plaintiff (the GP, the psychologist and Dr Middleton, a medicolegal occupational physician). 

The defendant called seven lay witnesses (two of the three directors of the company, Mr Savage and another supervisor, a former co-worker, the OH&S consultant, an acquaintance said to have bumped into the plaintiff at the football). 

The defendant did not call any doctors and all medical reports were tendered. 

The evidence 

The plaintiff gave his evidence, for the most part, very well (perhaps I am a bit biased). Conversely, the defendant witnesses gave contradicting accounts of key events. The most startling evidence being from the OH&S representative to whom the defendant said it delegated all staffing matters. The OH&S representative gave evidence that he had never seen the 2009 claim. He also gave evidence that he had extensive notes of training delivered to the defendant but these were handwritten and that a robber had stolen all his handwritten diaries. The evidence from one of the directors was also a bit fun – he said that the plaintiff was so disliked that he caused six employees to resign from the company. The director could not recall the names of these employees. These employees had made no statements and did not give evidence in the trial. 

The verdict 

On the morning of day 23, the jury were sent out. They came back with their verdict on the afternoon of day 24. 

Damages in excess of $1 million were awarded: $230,000 for pain and suffering and $802,978.70 for economic loss (including super and interest). 

At the date of trial the plaintiff was 47 years of age. 

What was a bit different?

The plaintiff issued a tendency notice seeking to rely on the tendency evidence of a co-worker who said that Mr Savage also bullied him. The plaintiff also sought to rely on tendency evidence of a Dr Middleton who would say that he had previously worked with Mr Savage and knew him to be a bully. 

In an attack on the plaintiff’s credibility, the defendant sought to tender print-outs of our client’s online activities which allegedly showed him to enjoy scantily clad women and women in unusual states of dress. The plaintiff denied that he was the owner of these accounts. The defendant, mid-trial, obtained leave to serve a subpoena on Twitter and that was the last we heard of it. The presumption is that the accounts did not in fact belong to our client. 

The judge prepared written summaries of the evidence, with transcript references and a written summary of the law (his charge) which he provided to the jury in a documentary form and then presented in PowerPoint. 

Closing thoughts

This matter had to run as there were no offers. The biggest risk was that we would lose. 

If we lost, the plaintiff would have had it confirmed by the Court that the awful things that were done to and said about him were valid and condoned. Every day that the trial continued I became increasingly anxious about the outcome and how it would affect the client. I started to have regular conversations with the client about the possibility that we might lose. It was evident from those conversations that he could not emotionally cope with that outcome. I cried when the verdict was given; not because we had won but because we had not lost. I remain bewildered that this matter had to run and that our client, who has a very severe psychiatric injury, had to endure a five-week trial which his legal team only just endured. 

 

Naomi Riggs is a Senior Associate at Adviceline Injury Lawyers and is an expert in personal injury with a particular focus on workers compensation, public liability, Comcare and employment law. Working in this area for nearly 10 years, Naomi is a passionate advocate for the rights of employees. She is an experienced litigator with a solid reputation for standing up for the rights of injured workers.
 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Tags: Compensation Victoria Liability Adviceline Injury Lawyers Bullying Psychiatric Injury Employment Damages