Unreliable witness loses her case against employer7 February 2018 | Employer's Liability
The plaintiff was unsuccessful in proving her employer negligently caused a psychiatric injury, along with a perianal haematoma.
- Failure by the plaintiff to prove she was bullied and harassed at work.
- Failure to prove physical injuries.
Ms Robinson (the plaintiff) was employed by Lorna Jane Pty Ltd (the defendant) as the store manager of the defendant’s retail store at the Skygate Direct Factory Outlet (DFO). She alleged that between July and December 2012 she sustained a psychiatric injury due to having been bullied and harassed by her Area Manager, Megan McCarthy (McCarthy). She also alleged she sustained a perianal haematoma from lifting and moving heavy boxes of stock at the DFO store on two occasions.
The plaintiff’s case was that the defendant was directly and/or vicariously liable for McCarthy’s acts or omissions, because it was on notice from an email and a meeting in August 2012, that McCarthy was bullying the plaintiff and causing undue mental distress. It was also alleged that the defendant breached its duty of care by not warning and counselling McCarthy about her behaviour, and that if this had been done the plaintiff probably would not have suffered the psychiatric illness.
The case largely turned upon the credibility of each parties’ witnesses. Following extensive cross examination of the plaintiff as to her social media activities, the court found the plaintiff was an unreliable witness who falsified her evidence. In contrast, the defendant’s witnesses were accepted as credible. Accordingly the court did not accept the plaintiff’s evidence with respect to whether the defendant ought to have been on notice of a foreseeable risk of injury, and in turn, did not accept her evidence with respect to any of the alleged behaviour by McCarthy, nor the effects of her psychiatric condition upon her capacity to work. The court found that the defendant was neither directly nor vicariously liable to the plaintiff.
The trial judge also did not accept the plaintiff’s evidence that she lifted and moved heavy boxes of stock at work, which she alleged caused a perianal haematoma. The claims for both the psychiatric and physical injuries were dismissed.
Implications for you
Whilst in this instance the primary issue for the trial judge was the plaintiff’s credibility, the case is a timely reminder of the need for employers to be aware of signs of mental or emotional distress in their employees and to take appropriate action. Employers need to be conscious of the need to investigate complaints in a timely way and be prepared to provide counselling or alternative work arrangements in appropriate circumstances. Prudent employers ought to have documented procedures with respect to allegations of bullying and harassment, which should in turn be followed.