District Court New South Wales

• Medium Neutral Citation: Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd [2014] NSWDC 185
• Hearing dates: 8, 9, 10, 11, 15 & 16 September 2014
• Decision date: 04 November 2014
• Jurisdiction: Civil
• Before: Levy SC DCJ

Decision

1.Verdict and judgment for the plaintiff in the sum of $733,723;

2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

• Catchwords: TORTS - negligence - workplace injury damages claim - sexual harassment, bullying and intimidation of female employee causing psychological injury; DAMAGES - assessment of claimed heads of damage
• Legislation Cited: Civil Liability Act 2002; Evidence Act 1995, s 60, s 97; Motor Accidents Act 1988, s 39; Summary Offences Act 1988, s 5; Workers' Compensation Act 1987, s 151L, s 151M
• Cases Cited: Arnott v Choy [2010] NSWCA 259; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301; Blacktown City Council v Hocking [2008] NSWCA 144; Brogan v McGeary, unreported, NSWCA, 40273 of 1994, 7 April 1995; Browne v Dunn (1894) 6 R 67; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345; Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; NSW v Fahy [2006] NSWCA 64; NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511; Nationwide News Ltd v Naidu & Anor [2007] NSWCA 3767; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330; Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
• Category: Principal judgment
• Parties: Janette Trolan (Plaintiff); WD Gelle Insurance and Finance Brokers Pty Ltd (Defendant)
• Representation: Ms E Welsh (Plaintiff); Mr M Davies (Defendant); MN Compensation Lawyers (Plaintiff); Turks Legal (Defendant)
• File Number(s): 2013/173683
• Publication restriction: None

Judgment

Table of Contents

Nature of case and factual background	[1] - [5]
Issues	[6] - [10]
Evidence overview	[11] - [29]
Absence of Mrs Anna Gelle as a witness	[30] - [33]
Credibility and reliability of testimony	[34] - [114]
Facts	[115] - [193]
Plaintiff's work background	[116] - [121]
Plaintiff's pre-accident health	[122]
Plaintiff's employment with the defendant	[123]
The alleged conduct	[124] - [126]
First element of conduct	[127]
Second element of conduct	[128]
Third element of conduct	[129]
Fourth element of conduct	[130]
Fifth element of conduct	[131]
Sick leave taken by plaintiff after first phase of conduct	[132]
Plaintiff's telephone complaint to Mrs Gelle	[133] - [138]
Sixth element of conduct	[139]
Seventh element of conduct	[140]
Eighth & Ninth elements of conduct	[141] - [142]
Tenth element of conduct	[143]
Eleventh element of conduct	[144]
Twelfth element of conduct	[145] - [147]
Plaintiff's reactions to alleged conduct	[148] - [156]
Medical and allied reviews	[157] - [184]
Disabilities and their evolution	[185] - [193]
Issue 1 - Sexual harassment, bullying and intimidation?	[194] - [209]
Issue 2 - Was the plaintiff's employer negligent?	[210] - [242]
Issue 3 - Was there any contributory negligence?	[243] - [247]
Issue 4 - Assessment of damages	[248] - [304]
Mitigation of loss	[251] - [275]
Past economic loss	[276] - [289]
Past loss of superannuation	[290]
Future economic loss	[291] - [301]
Future loss of superannuation	[302]
Fox v Wood	[303]
Summary of damages assessment	[304]
Disposition	[305]
Costs	[306]
Orders	[307]

Nature of case and factual background

1 The plaintiff, Ms Janette Trolan, brings this claim in negligence seeking damages for psychological injury against her former employer, the defendant, WD Gelle Insurance and Finance Brokers Pty Ltd.

2 The plaintiff alleges that on numerous occasions in her workplace, between August 2008 and December 2008, in breach of the duty of care she was owed, Mr Warren Gelle, who was the mind, will and embodiment of the defendant company, systematically conducted himself towards her in an unwelcomed and sexualised manner. She claims that conduct amounted to sexual harassment, intimidation and bullying. The plaintiff stated that on each occasion such conduct occurred, she had emphatically rebuffed and actively discouraged that behaviour.

3 The plaintiff alleges that following her complaints on 20 September 2008 to Mrs Anna Gelle, another director of the defendant company and wife of Mr Gelle, nothing was done to address or curtail Mr Gelle's alleged conduct. The plaintiff alleges the result was that the conduct continued unabated and became increasingly more offensive to her, with the result that she developed a psychological illness.

4 In the course of these reasons, that alleged conduct will be referred to as having twelve identified elements which will be separately enumerated in my findings of fact.

5 The defendant denied each one of the plaintiff's allegations in their entirety, as did Mr Gelle. Accordingly, this is not a case of comparing and weighing different versions of the events. On the case for the defendant, the conduct of Mr Gelle, as alleged by the plaintiff, simply did not occur: T56.40.

Issues

6 Therefore, the pivotal issue for determination in these proceedings is the factual question of whether the conduct of Mr Gelle, as alleged by the plaintiff, had actually occurred. The outcome of that issue is dependent upon the assessment of the credibility and the reliability of the testimony of the respective witnesses, all of whom had their credit challenged.

7 In his evidence, Mr Gelle sought to assert that the plaintiff had wrongfully set him up for a workers' compensation claim: T239.1 to T239.3; T244.39. He had shared that view with one of the witnesses called in the defendant's case: T301.25 to T301.28. In the context under consideration, that allegation is equivalent to an allegation of fraud.

8 In seeking to amend the filed defence at an early stage of the hearing, counsel for the defendant specifically disavowed any intention to allege that the plaintiff's claim was made fraudulently. Instead, it was contended that the plaintiff's allegations amounted to lies: T60.43; T66.10 to T68.14. In a case such as this, if an allegation of fraud was reasonably open to be argued on the evidence, it would be expected that a defence framed in those terms would have been advanced by the defendant's insurer. The defence case did not make allegations of fraud as such.

9 The plaintiff claims that any assessment of damages in these proceedings should be governed by the provisions of the Workers' Compensation Act 1987 [the "WC Act"].

10 In contrast, the defendant claims that if the conduct in question is found to have occurred as the plaintiff has alleged, then that conduct should be characterised as comprising the intentional actions of Mr Gelle, which in consequence, it was argued, does not create a legal liability in the defendant under workers' compensation legislation.

Evidence overview

11 The plaintiff gave evidence of the sexualised behaviours and inappropriate comments which she claimed Mr Gelle had directed at her. She was cross-examined on those matters at length. The plaintiff called evidence from Mrs Denise Richardson, a former work colleague who had retired from the defendant's employ due to the effect of the stressful working conditions she had experienced whilst in the employ of that company. The plaintiff also called evidence from her partner, Mr Brian Wright, as to her situation since leaving the defendant's employ.

12 In the case for the defendant, evidence was given by Mr Warren Gelle, who emphatically denied the plaintiff's allegations. He was cross-examined extensively on those denials. Those denials stand to be evaluated alongside the evidence of the plaintiff on those matters.

13 In an endeavour to rebut the plaintiff's assertions as to the alleged conduct of Mr Gelle, the defendant also called oral evidence from three other persons who worked in the office, Mr John Lyon, Mr Michael Fogarty and Mr Lester Levin. The effect of the evidence of those persons was that they had not seen or heard the alleged conduct. That evidence was relied upon by the defendant to base the suggestion that the conduct in question was unlikely to have occurred as alleged by the plaintiff.

14 The documentary evidence tendered by the parties will be referred to in these reasons where it is relevant to do so. A brief description of that evidence is as follows.

15 Exhibit "C" comprised a roughly drawn sketch plan intended to represent the defendant's office layout where the conduct at work was alleged to have occurred. That sketch showed a rough juxtaposition of the locations of the various work stations in the open plan office where all of the defendant's employees worked.

16 That sketch plan had been prepared by the plaintiff on 27 January 2009 in connection with earlier criminal proceedings that had been instituted against Mr Gelle. Notwithstanding the oral evidence that sought to explain Exhibit "C", I found that sketch plan to be of little assistance to determining the matters in issue, as it did not negative any opportunity on the part of Mr Gelle to have pursued the conduct the plaintiff alleges against him. That conclusion also arises because of the presence of acoustic screens which formed part of the office layout.

17 The earlier criminal proceedings against Mr Gelle involved charges brought against him by the police for the alleged indecent assault of the plaintiff. Those proceedings, which involved the same facts as are alleged in the present proceedings, were heard in the Local Court on 10 March 2010.

18 Those charges were ultimately dismissed as the presiding Magistrate found that Mr Gelle's guilt on those charges had not been proven beyond reasonable doubt. Selected parts of the transcript of those proceedings were the subject of cross-examination in the present case, however, neither party tendered any part of that transcript.

19 In the present proceedings, the plaintiff relied upon an historical list of Mr Gelle's previous convictions that were recorded between 24 January 1983 and 18 June 2010 Exhibit "E". Those convictions were for acts of public indecency committed by Mr Gelle concerning instances of wilful and obscene exposure of his person in or within view of a public place, presumably pursuant to s 5 of the Summary Offences Act 1988. That exhibit also incorporated a tendency notice the plaintiff's solicitor had served on the defendant pursuant to s 97 of the Evidence Act 1995.

20 That tendency notice alleged "the employer", this being an obvious reference to Mr Gelle, had a tendency to act inappropriately and obscenely: Exhibit "E". A common link between the conduct described in the tendency notice and the conduct alleged in these proceedings is that both concerned disinhibited behaviour on Mr Gelle's part.

21 The plaintiff also tendered the terms of a court ordered recognisance dated 8 May 2007, by which Mr Gelle had been bound over to be of good behaviour, and which also required him to observe other specified conditions, including to accept the supervision and directions of the Probation and Parole Service. That recognisance remained current and in force at the time of the alleged 2008 conduct complained of by the plaintiff: Exhibit "F".

22 The plaintiff also relied upon a report relating to Mr Gelle that had been prepared by Ms Helen Carney, a consultant psychologist: Exhibit "J". That report had earlier been obtained by lawyers acting on behalf of Mr Gelle for the purposes of seeking mitigation of sentence in the 2007 criminal proceedings against him, which resulted in the recognisance dated 8 May 2007.

23 The plaintiff also relied upon a bundle of the plaintiff's witness statements prepared by investigating police (Exhibit "D") and a facts sheet prepared by the NSW Police and dated 15 December 2009: Exhibit "K". That facts sheet related to an offence pursuant to s 5 of the Summary Offences Act 1988 which occurred after the events complained of by the plaintiff, namely on 15 December 2009.

24 The relevance of that document to these proceedings is that it records the fact that Mr Gelle was "receiving treatment" for the conduct which was the subject of the charge, and that he had admitted that the "treatment was not working and [the conduct the subject of that charge was] his way of relieving stress". The plaintiff seeks an inference that she was subjected to the behaviour in question because Mr Gelle's treatment was not working when the events, the subject of these proceedings, occurred.

25 The plaintiff relied upon a chronology of events (Exhibit "A") and a bundle of medical reports (Exhibit "B") as well as payroll and workers' compensation records (Exhibits "G" and "H") on the damages issues.

26 The defendant sought to rely upon copies of a number of photographs (Exhibit "3") taken by Mr Gelle of the plaintiff in her home on 17 October 2008: T73.

27 There was a dispute as to how those photographs should be interpreted. On the one hand, the plaintiff said that, apart from one photograph of which she became aware as it was being taken when Mr Gelle had called out to her which caused her to look around (T77.13), they were taken by Mr Gelle using the camera function on his mobile telephone without her knowledge. She said this had occurred whilst she was showing him some clothing outfits that might be suitable for a forthcoming work function that involved marketing of the defendant's business. On the other hand, Mr Gelle suggested that those photographs were taken with the plaintiff's knowledge.

28 For the reasons set out in my fact-findings, I find those photographs to be of limited utility in resolving that issue: Blacktown City Council v Hocking [2008] NSWCA 144. I was assisted in arriving at that view because it was common ground within the evidence of the plaintiff and Mr Gelle, that on the occasions of his after hours visits to the plaintiff's home (T69), there was no hint of any inappropriate or sexualised behaviour of any kind on his part directed to the plaintiff: T93.39 to T93.45. Furthermore, Mr Gelle made no suggestions to the contrary in his evidence.

29 On the damages issues, the defendant relied upon copies of the plaintiff's income tax returns for the period 2007 to 2013, a bundle of medical and allied reports and a workers' compensation payments schedule: Exhibit "4" and Exhibit "1".

Absence of Mrs Anna Gelle as a witness

30 In the course of his opening address on behalf of the defendant, counsel for the defendant announced that Mrs Anna Gelle, the wife of Mr Gelle, would be called as a rebuttal witness in the case for the defendant: T5.4; T103.20.

31 Subsequently, on 11 September 2014, which was Day 4 of the hearing of these proceedings, in his evidence, Mr Gelle stated that Mrs Gelle was in South America, and he did not know when she would be returning: T228.39 to T228.48.

32 The court file shows that these proceedings were the subject of a case management hearing listed on 22 January 2014, at which time the hearing dates were allocated. There was no evidence as to when, if at all after that date, attempts had been made to issue Mrs Gelle with a subpoena to require her to give evidence in these proceedings, and if so, with what result.

33 No application was made by the defendant either for an adjournment of the proceedings in order to call Mrs Gelle, or to take the evidence of Mrs Gelle from South America, either by means of an audiovisual link or by telephone. On behalf of the plaintiff, comment was made as to the absence of her testimony on key matters of contested fact. The plaintiff seeks the inference that if called, Mrs Gelle would not have assisted the defendant's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298: T331.45 to T331.47.

Credibility and reliability of testimony

34 The key witnesses on disputed matters of fact were the plaintiff, Mrs Richardson and Mr Gelle. In my view, for the reasons set out in my assessment of credit matters, the evidence of the witnesses other than the plaintiff, Mrs Richardson and Mr Gelle comprised only background material because of the personal nature of the alleged behaviours and the limited opportunities the other witnesses had to make observations on the behaviours in question.

Plaintiff

35 I found the plaintiff to be a satisfactory witness concerning the factual matters that she had recounted in her evidence. From the outset of her evidence the plaintiff displayed extreme nervousness. At various times in her evidence she displayed tearfulness and was upset when recounting the details of the conduct she alleged against Mr Gelle. She disclosed that she was nervous, had not slept, and that she had taken a Valium tablet before giving her evidence. This was because she experienced anxiety on leaving the home. She related this to the behaviour of Mr Gelle of which she complains in these proceedings.

36 To her credit, the plaintiff gave candid evidence against her interests concerning the manner in which she described Mr Gelle as having coerced her into certifying as valid a fraudulent insurance claim on behalf of a client of the defendant in circumstances that reflected poorly on Mr Gelle's integrity.

37 The plaintiff said this occurred after Mr Gelle had intimidated her over the course of three days of screaming at her in order to coerce her into doing what he required of her in that regard: T125 to T126. The plaintiff gave unchallenged evidence that when she was no longer in Mr Gelle's presence, and at a time when his coercion of her had ceased to operate, she had appropriately reported the incident to the insurer. Mr Gelle's evidence did not seek to canvass or traverse that issue at all.

38 In cross-examination, the detail of the plaintiff's allegations against Mr Gelle concerning his alleged unwelcomed and sexually harassing behaviour was challenged in that it was suggested those events had not occurred. The plaintiff rejected those challenges: T92.4; T97.24; T101.34; T115.42; T119.46; T123.17; T124.20; T125.24, and in other places in the transcript.

39 The plaintiff gave consistent and repeated evidence that she had complained to Mrs Gelle about Mr Gelle's behaviour: T101.40; T102.45; T109.45; T116.50; T120 and at other places in the transcript. The plaintiff stated that she had begged Mrs Gelle not to leave her on her own with Mr Gelle: T117.8. I took that evidence to refer to the workplace. Mrs Gelle was not called to give evidence and that evidence remained uncontradicted. I considered the plaintiff's evidence of that conversation to be entirely credible and not in any way improbable.

40 On behalf of the defendant it was submitted that the plaintiff's evidence was unconvincing, contained inconsistencies and was unreliable. Contrary to those submissions, I have concluded that the plaintiff's evidence was entirely convincing, there were no substantive or material inconsistencies in the plaintiff's evidence, and there was no cause for doubting her truthfulness.

41 I find myself unable to accept any of Mr Gelle's assertions where they sought to contradict the evidence of the plaintiff.

42 The defendant's submissions that sought to criticise the plaintiff's credit focussed upon what I considered to be irrelevant matters that centred around Mr Gelle's after hours visits to the plaintiff's home for business purposes. Those visits occurred at Mr Gelle's instigation because he sought access to the plaintiff's computer database of clients in order to seek to exploit them for the benefit of his own business.

43 In my view the defendant's "straw man" submissions in regard to those matters as set out in paragraphs 2 to 18 of the defendant's written submissions should not be accepted.

44 It was not to the point that the plaintiff agreed to these visits. It was concomitant with her employment with the defendant that she did so for the purposes of expanding her employer's business. It was equally understandable that she would not ask Mr Gelle to leave at times she felt he had outstayed his welcome in circumstances where she was seeking to secure her employment with the defendant company. Neither should it be seen as detrimental to the plaintiff's credit that on those occasions a meal and some drink was consumed.

45 Contrary to the defendant's submissions, I do not see the plaintiff's inability to specify the dates of Mr Gelle's home visits as being necessarily detrimental to her credit. This is particularly so given the evidence of the plaintiff's difficulties with concentration and cognition, which was unchallenged.

46 The defendant sought to make much, too much in my view, out of the photographs surreptitiously taken of the plaintiff by Mr Gelle in her home.

47 A prime example of this is the suggestion that the dress worn by the plaintiff, as shown in the photographs, "clearly" shows the plaintiff's underwear underneath the dress. That submission is entirely subjective and in my view, having regard to the poor quality of the photographic print and the poor lighting as depicted in the photographs, is one that goes well beyond what might be considered to be a reasonable interpretation of the photograph: Blacktown City Council v Hocking [2008] NSWCA 144.

48 Another flaw in the defendant's credit submission regarding Mr Gelle's visits to the plaintiff's home is the suggestion that the plaintiff is shown in the photographs to have been wearing a short dress well above knee height. Having regard to the range of modern mores of female attire, in my view, that submission should not be accepted.

49 Furthermore, the submission to the effect that the photographs, or at least some of them, were posed, is not borne out by the evidence. In my view, the defendant's submission in that regard invokes an interpretation not reasonably supportable by the photographs: Blacktown City Council v Hocking [2008] NSWCA 144. I accept the plaintiff's denial that she posed for those photographs.

50 Contrary to the defendant's submissions, the fact that the plaintiff did not allege any impropriety on Mr Gelle's part whilst they were together at her home, does not raise credibility questions concerning the plaintiff. It does not follow that simply because there were no sexual advances made to the plaintiff by Mr Gelle in her home, that it was unlikely that Mr Gelle would make such advances in the workplace.

51 This may be because of specific idiosyncrasies relating to Mr Gelle's personal make up and underlying propensities, as alluded to in the psychological report of Ms Carney and the evidence of Mr Gelle himself, who seemed to make a distinction between his offences involving public indecency and his private behaviour at work.

52 It is not beyond the realms of human behaviour that apparently normal people can at times behave abnormally, and that people with odd or abnormal personality or behavioural traits can at times behave normally.

53 The plaintiff's evidence, at T93.46 to T93.47, indicated that paradoxically, she felt safer with Mr Gelle when he was on his own at her home, than when he was at work. Perhaps the explanation for the apparent dichotomy is the fact that the described behaviour at work involved risk-taking disinhibition, like the public indecency offences committed by Mr Gelle in the past. I consider that explanation carries persuasive force, and it is an answer to the defendant's submission on this point.

54 In the context of the evidence in this case, the defendant's submission that the plaintiff was an unreliable historian because she was unable to provide dates with particularity must be rejected. This is because the submission makes no allowance for the effect the matters complained of have had on her cognition and concentration. Furthermore, the conduct in question as recounted by the plaintiff was cumulatively shocking and distressing to her over time. Accordingly, it is not surprising she could not give specific dates when questioned on this topic.

55 There are further flaws in the defendant's attack on the plaintiff's credit in the form of the suggestion that there was no contemporaneous corroborative evidence to support the plaintiff's claims.

56 Contrary to that submission, there is the uncontradicted contemporaneous complaint the plaintiff made to Mrs Gelle by telephone in the presence of Mrs Richardson. Furthermore, the suggestion that in this case the plaintiff's evidence cannot be accepted without corroboration is an unsound one. The plaintiff's evidence is open to be accepted without corroboration. There was no requirement that the plaintiff call evidence from her father in the UK to recount his telephone discussions with the plaintiff on the subject of corroborating her complaints about Mr Gelle's behaviour towards her.

57 Finally, the credit submission the defendant seeks to make against acceptance of the plaintiff's evidence seizes upon her use of the word "hearsay" (at T116.49) in reference to Mrs Gelle's potential evidence. The defendant's submission makes the suggestion that the plaintiff is familiar with the rules of evidence and has therefore raised the question that "her evidence was tailored and therefore is not truthful evidence": Defendant's written submissions, paragraph 15.

58 In my view, the fatal flaw in that submission is the fact that it offends the principles of procedural fairness which requires that the plaintiff be given the opportunity to confront and rebut such a suggestion. The plaintiff was given no such opportunity and that submission must therefore be rejected: Browne v Dunn (1894) 6 R 67.

59 I consider that the plaintiff's use of the word "hearsay" does nothing more than to employ the common usage and understanding of the meaning of that word. I reject the preposition that the plaintiff has used assumed legal knowledge to somehow tailor her evidence, as was submitted on the defendant's behalf.

Mr Gelle

60 Mr Gelle gave his evidence with the aid of a hearing loop. It was plain that having to answer questions on matters that embarrassed him was understandably stressful for him: T225.41 to T225.50.

61 After making due allowance for such matters, and for the reasons that follow, I found Mr Gelle to be an unsatisfactory and unconvincing witness on all matters in contention between the parties. I found myself unable to rely upon any aspect of his evidence that involved controversy when compared to the evidence of the plaintiff.

62 Although Mr Gelle acknowledged that the defendant's insurer was defending the present proceedings by way of its subrogated right to do so (T223.11-14), he nevertheless sought to exercise control over the proceedings, as well as control over the evidence he considered needed to be adduced.

63 He sought to avoid answering questions, and he sought to make arguments in the form of advocacy in the course of his testimony as if he was the affected party. He even sought to suggest the plaintiff was not an employee but on some form of contract, an allegation he later recanted when this was explored: T171.20.

64 Mr Gelle denied the plaintiff's allegations that there had been improper conduct on his part: T181.20 to T182.19; T232.7; T232.44; T233.18 to T234.13; T237.3; T237.18; T238.8. He denied that his manner of conducting himself in the office was to raise his voice at his employees: T253.9. That evidence was contradicted by other witnesses. He also denied making threats against the plaintiff after her employment had ended: T183.32; T244.22.

65 In claiming he had seen a tattoo on the plaintiff's body he gave inconsistent evidence, on the one hand stating that tattoo was located about two to three inches below her waist, and on the other version, on her thigh. He also claimed the plaintiff had lifted her dress to show him that tattoo: T184.1 to T184.9. This was in contrast to the evidence of the plaintiff in which she said she had never exposed that tattoo to Mr Gelle for him to view, and that the existence of the tattoo was common knowledge in the office as she had disclosed that she had obtained the tattoo in commemoration of the victory of her favourite UK football team. I accept her evidence in that regard.

66 When cross-examined on his prior criminal record, Mr Gelle sought to obfuscate and avoid answering the question: T186.33. He sought to fence with the cross-examiner: T186.37 to T186.45; T191.6; T192.25; T197 to T198; T207.18; T212.46; T224.13; T227.23; T227.38; T235.11; T236.30 to T236.44; T237.35; T238.16; T240.34; T241.18 to T241.26; T244.22; T245.9; T247.36 to T248.2. He sought to raise objections on the relevance of his prior criminal record: T187.9. He also ignored some questions by not replying to them: T193.1 to T193.9.

67 Mr Gelle sought to understate the extent of the plaintiff's salary during the time of her employment and he sought to make a disparaging remark about his judgment in having employed the plaintiff: T172.9; T205.39. At times he sought to impose non-responsive answers to questions asked of him in cross-examination and he sought to make superfluous additional comments: T216.9; T231.13; T231.26; T239.19 to T239.44; T240.11.

68 At times Mr Gelle expressed dissatisfaction with the actions of his legal representatives: T188; T228.9; T223.32; T232.23; T237.41. It seemed to me that his attitudes in that regard were related to the embarrassing content of some of the evidence alleged against him, and the similarly embarrassing subject matter of his past criminal convictions.

69 I considered that the described attitudes of Mr Gelle as displayed during the course of his evidence undermined the credibility and the reliability of his testimony.

70 During the hearing, on 15 September 2014, it was noted on the record that during an overnight adjournment, after Mr Gelle's evidence had concluded, he had sought to make contact with my chambers concerning matters of evidence.

71 That matter was noted in the transcript: T291.14 to T291.29. As Mr Gelle was upset by the matters canvassed in the evidence, and whilst such attempted contact was inappropriate, I do not propose to regard that particular attempt at contact as a matter that necessarily adversely reflected upon his credit as a witness.

Mr Wright

72 Mr Wright had become the plaintiff's life partner well after the events in question. He only became privy to the subject matter of these proceedings after some time into the relationship. His evidence related to the plaintiff's emotional state, her nervousness, her need to take medications, and her reluctance to go out of the house. I found Mr Wright to be a credible and reliable witness.

Mrs Richardson

73 Mrs Richardson formerly worked as a claims manager for the defendant company since 2001. She worked in that position until she left on stress leave, which involved a claim by her that Mr Gelle had been verbally abusive to her. Although Mrs Richardson clearly had issues with her former employer, I found her evidence to be credible and reliable.

74 Furthermore, and specific to the issue of whether or not the plaintiff had reported Mr Gelle's alleged offending conduct to Mrs Gelle, Mrs Richardson's evidence of having been present, and of having overheard the critical conversation on the loudspeaker between the plaintiff and Mrs Gelle on the mobile telephone in Mrs Gelle's motor vehicle, was neither inherently improbable, nor was it contradicted by other evidence, notably, the other participant to the conversation, Mrs Gelle.

Mr Lyon

75 Mr Lyon formerly worked in the defendant's office as a consultant between 2006 and 2010. His training was as an acoustics engineer. In that capacity he offered technical advice on aviation insurance matters. He said he normally kept long working hours in the office between 6.30am or 7.00am and 6.30pm or 7.00pm, five days per week. He also spent a lot of time on the telephone whilst in the office attending to business matters.

76 I gained the impression from the evidence of Mr Lyon that he did not have a good memory for specific details of aspects of the plaintiff's work arrangements (T261 to T262) or of events that took place in the office: T284.42 to T284.48; T285.5 to T285.14.

77 Mr Lyon described the defendant's office as having within it moveable acoustic screens that were roughly 6 feet in height: T266.11. He described those screens as being solid in appearance and forming a privacy barrier: T286.35. His evidence included assumptions as to what he thought others knew, and irrelevantly, he ventured opinions on what he considered to be the plaintiff's non-conventional attire in the office: T267.

78 Mr Lyon denied that the plaintiff had ever complained to him that Mr Gelle had inappropriately touched her in any way: T269.8 to T269.15. That evidence was in contrast to the evidence of the plaintiff to the effect that she had told him of such matters during a call on his mobile telephone, at which time she said Mr Lyon had suggested they get together and talk about the problem and sort out a plan of action: T117.6; T70.34.

79 Mr Lyon said he had never seen Mr Gelle touch the plaintiff inappropriately. He also said that he had not heard the plaintiff rebuff Mr Gelle along the lines she had described in her evidence: T268.32; T269.15. He had assumed that if the plaintiff had said words such as "get your hands off me you filthy git", he would have heard them from his desk: T268.36. The assumption necessarily implicit in that evidence was that he was in the office and not distracted by his work or other matters when such events were alleged to have occurred.

80 I do not regard the foregoing evidence as credible support for the defendant's case as Mr Lyon acknowledged there were occasions, albeit rare, when he would leave the office to go and see clients, and when he would go out for lunch: T269.3; T277.49. Furthermore, it seems to me to have been unlikely that Mr Gelle would have undertaken the behaviour described by the plaintiff in the nature of sexual harassment in full view of other people in the office.

81 Mr Lyon said he spent as much as 60 per cent of his time in the office on the telephone, and that some of that time would have been spent with his back turned to the other areas in the office: T280.30 to T281.10. In fact he spent most of his time at his desk paying attention to his work: T281.7.

82 Mr Lyon's evidence included elements of speculation, namely whether or not in his opinion, the plaintiff appeared apprehensive in the presence of Mr Gelle: T271.25. In his evidence at T272.12 to T272.19, he described Mr Gelle's propensity for verbal outbursts in the workplace as follows:

"...

A. Warren could get frustrated with a particular member of staff from time to time. I don't think there was any doubt about that. But he wasn't - to try and fill that in a bit for you, he may have been loud and a bit on the verbose side but I, I wouldn't say he was, if I can use the expression, over the top or, you know, excessively aggressive or antagonistic or anything of that nature. He's a pretty straight - he's pretty straight but he wasn't screaming, put it that way. He wasn't yelling and - he was certainly making his opinion known. But - and fairly forcefully but I don't think it was excessive is the expression I would use."

83 At times Mr Lyon took an argumentative stance with the cross-examiner rather than simply answering the question at hand: T272.46; T273.29: T275.46; T278.19; T282.48. He was gratuitously critical of Mrs Richardson: T273.37 to T274.19. He was defensive and he over-reacted when he was asked questions about the fact that he had spent some time with Mr Gelle in a conference room adjacent to the court room before he gave his evidence: TT276.12 to T277.19. He also sought to anticipate the direction of cross-examination, and he sought to deflect questions: T280.5; T280.14. I gained the impression he was seeking to assist Mr Gelle in this litigation.

84 Until 2010, which was when he was made aware of criminal charges laid against Mr Gelle, Mr Lyon had assumed the plaintiff had left the defendant's employ because Mr Gelle was unhappy with her work performance: T282.44.

85 Mr Lyon was first asked by the defendant's legal representatives to seek to recall the relevant events in connection with the previous criminal proceedings in 2010: T285.40. In my view, the late emergent timing of those circumstances also limited his ability to reliably relate accurate testimony on the matters in contention.

86 I considered the evidence of Mr Lyon, taken on its own, to be an unreliable basis upon which to reject the plaintiff's otherwise credible and plausible account of the events she described. I do not consider Mr Lyon was ever in a position to affirmatively rebut the plaintiff's evidence in which she described Mr Gelle's unwelcomed behaviour in the workplace.

87 With regard to the divergence between the evidence of the plaintiff and Mr Lyon concerning the plaintiff's evidence that she had told him of the problem of Mr Gelle touching her inappropriately, I do not accept Mr Lyon's evidence to the effect such a complaint had not occurred. I considered the plaintiff's account of that conversation to be credible and reliable.

Mr Fogarty

88 Mr Fogarty was employed as the defendant's bookkeeper between 2007 and 2013. He worked in that capacity between 3 to 5 hours per day on flexible days that varied: T292.37 to T292.45. He generally spent his working days in the office except for the times he spent out of the office for tea and lunch breaks.

89 Mr Fogarty's evidence describing the plaintiff included gratuitously loaded detail that went beyond the demands of the question asked of him as to whether he knew the plaintiff: T294.22.

90 I formed the impression from his answer in that regard, and from his other evidence, that he was also partisan to the defendant's side of the litigation, and that he was not being objective or measured in his descriptions. This raised a question as to the reliability of his evidence.

91 Mr Fogarty's evidence concerning whether he had ever seen the plaintiff in Mr Gelle's office was based on assumption and speculation: T295.5. Whilst he said he had never observed Mr Gelle touching the plaintiff inappropriately, and whilst he said that he had never heard the plaintiff remonstrating with Mr Gelle as a result of such conduct, having regard to his evidence of his limited working hours as already cited, I did not regard that evidence as a source of reliable proof of the proposition advanced by Mr Gelle to the effect that the untoward conduct by him, as recounted by the plaintiff, had not occurred.

92 When asked to consider the details of the plaintiff's allegations against Mr Gelle, Mr Fogarty laughed volubly and dismissed them as "either an extravagant abuse of the truth or it's just an outright lie": T296.16. I considered that his outburst reactions in that regard revealed him to be a partisan witness who was keen to give evidence that was gratuitously critical of the plaintiff: T296.26.

93 In my view, the only reliable part of Mr Fogarty's evidence was where he confirmed, albeit in a muted and understated way, that he had observed Mr Gelle to yell at staff members, albeit rarely: T297.20. In that vein, at T297.28 to T297.33, he stated:

"... A. That's why I said very rarely cause I, I, I really - Mr Gelle's management style sometimes he raises his voice but it's generally in respect of a - I suppose from a sense of frustration in something that has happened or hasn't happened. It's - I would suggest it's a, it's, it's bordering on the upper percentile of being not appropriate. That's all. It wouldn't be my style of managing a staff member or a staff."

94 On the central factual issues of whether the plaintiff had been sexually harassed in the workplace, Mr Fogarty sought to obfuscate in the course of his evidence by seeking to unnecessarily include unresponsive detail: T299.15. He also sought to resort to speculation in his answers: T299.45; T302.50; T305.18.

95 Mr Fogarty gave evidence that exaggerated his working hours in the employ of the defendant to a degree that was greater than the fact: T300. When challenged on those matters he was unable to provide explanatory detail: T301.5.

96 I gained the impression that whilst in the office, Mr Fogarty was very much concentrated on his work and he was not particularly observant of what was happening or being said in the office at the times he was there: T304.

97 In my view, Mr Fogarty's evidence does not provide a reliable basis upon which to reject the plaintiff's evidence in which she described the relevant behaviours of Mr Gelle in the workplace.

Mr Levin

98 Although at times it appeared that Mr Levin tried to give evidence to the best of his knowledge and recollection, he was slow to provide his answers and also sought to include editorial comments in his evidence. This caused me to have reservations about accepting his evidence where it did not accord with the plaintiff's evidence on critical matters. On considering his evidence as a whole, I formed the view that on critical matters of dispute, Mr Levin was partisan to the defendant's interests, perhaps out of some sort of loyalty to Mr Gelle.

99 Mr Levin commenced his employment with the defendant company as an insurance broker in about April 2008: T306.18 to T306.25. He left the defendant's employ in 2010 because he felt that he was being underpaid: T325.15. His working hours were generally between about 9.00am to 7.30pm. He said that on rare occasions, he was required to visit clients outside the office: T306.38.

100 Mr Levin confirmed the presence of tall fabric lined partitions in the office: T308.19. In my view, the presence of those partitions would have had some significant limiting effect on his ability to observe or hear the goings on in the office as between Mr Gelle and the plaintiff.

101 Mr Levin had prepared a statement about matters to do with this case at the time he was interviewed by an investigator on 4 March 2013, which was over 5 years after the events in question: T309.42. In his evidence in these proceedings he agreed that statement contained inaccuracies: T310.33; T311.12. This raised doubts about the reliability of Mr Levin's evidence as his previous statement was not available for review.

102 Mr Levin had on occasions spent some time out of the office with the plaintiff at times when they took cigarette breaks. He said that on those occasions they would converse on general matters: T312. The defendant sought to argue that in their talks, the fact the plaintiff had not confided in Mr Levin as to Mr Gelle's alleged behaviour was indicative that the alleged behaviour had not occurred.

103 Contrary to that contention, the plaintiff stated that she had in fact complained to Mr Levin to the effect that Mr Gelle had touched her inappropriately: T117.35.

104 Significantly, the plaintiff's evidence on that topic was not challenged in cross-examination. In contrast, Mr Levin stated that the plaintiff had never told him that Mr Gelle had touched her inappropriately: T314.20 to T314.34. I found Mr Levin's evidence in that regard unconvincing, especially since the plaintiff's evidence on that subject was not relevantly challenged by cross-examination.

105 Mr Levin commented that he had neither seen the behaviour towards the plaintiff that was alleged to have been committed by Mr Gelle, and similarly, he said he had not seen or heard the plaintiff's rebuffs of such behaviours: T313 to T314. This does not necessarily mean that the conduct in question did not occur as claimed by the plaintiff.

106 Curiously, when counsel for the defendant took Mr Levin to the pencil between the buttocks incident which comprised the eleventh element of Mr Gelle's conduct, to which I shall in due course refer, at T313.48 to T314.10, Mr Levin's evidence was as follows:

"Q. Taking you to the pencil incident, did you see Ms Trolan jump up out of her chair--

A. No.

Q. --immediately after that pencil incident?

A. No.

Q. And as part of that same motion, did you hear her say or scream, "You dirty filthy git.", to Mr Gelle?

A. No. In fact, if I recall correctly as regards to that incident, on the day, she was wearing a cream or blue coloured skirt tied around the waist, a blouse, and from my observation it would've been nigh near impossible to put anything down her back."

[Emphasis added]

107 The content and context of the emboldened portion of that evidence caused me to doubt the reliability of Mr Levin's evidence as he clearly had an incident in mind but took an argumentative stance against the veracity of the plaintiff's account of that incident.

108 In my view, this was even to the extent of gratuitously volunteering a comment on the plaintiff's attire on the day in question. It is difficult to accept that Mr Levin had witnessed an "incident" which, on his evidence, had not occurred: T314.25.

109 Whilst it was possible that Mr Levin had in fact remembered the details of the day in question without having seen an incident, I consider that to be an unlikely explanation because of his specific reference to "that incident" at T313.48 to T314.10, as cited above.

110 Mr Levin gave evidence of an attempt by the plaintiff to get him to change his evidence some 4 to 5 months before the commencement of Mr Gelle's trial on the criminal charges. He said that he had declined to do so: T314.22. I find that evidence unconvincing because first, it was a gratuitous and non-responsive addendum to a question as to whether the plaintiff had told him of Mr Gelle touching her inappropriately, and secondly, because that was not a matter that was specifically put to the plaintiff in cross-examination in a case where credit is very much in issue.

111 Mr Levin's claimed first awareness of the plaintiff's complaints of sexual harassment by Mr Gelle was in 2009, which was months after the plaintiff had left the defendant's employ (T315), was contrary to the plaintiff's unchallenged evidence to the effect that she had told him of that behaviour: T117.35.

112 Mr Levin was at times a hesitant witness who approached the answers to questions asked of him in a guarded and semantic manner: T320.15. He acknowledged that the working environment in the defendant's office was stressful (T320.39) and he was of the opinion, based on his own experience of Mr Gelle, that Mr Gelle was the type of person who would resort to threats at times: T321.24 to T321.30.

113 In addition to being a hesitant witness, Mr Levin at times sought to anticipate where the questioning was going: T323.19. This caused me to doubt the reliability of his evidence on matters concerning the plaintiff.

114 After hearing the evidence of Mr Levin and reviewing the whole of that evidence carefully, I find him to be an unconvincing witness of matters in contention between the parties. I was left with the conclusion that there was nothing in his evidence that reliably permitted the conclusion that the plaintiff's evidence on the matters she described was incorrect in any material respect.

Facts

115 Unless otherwise stated, my findings of fact are as follows.

Plaintiff's work background

116 The plaintiff was aged almost 52 years at the time of the hearing. She was aged 46 years when the events in question occurred. She was born and educated in England. She arrived in Australia in 1986. Whilst in England she had worked as an insurance clerk for a building society.

117 In Australia, before the events in question, she had maintained continuous employment. She initially undertook clerical work. In 1991 she obtained employment as an insurance underwriter with the Australian Aviation Underwriting Pool. She maintained that employment for about 6 years, and in that time, developed an expertise and reputation in that area.

118 Between 1997 and 2004 she worked as an aviation underwriter for Heath Lambert Aviation. In 2004, after her retrenchment from that company when it closed down, and following a 2-year period of alternative employment in the aviation underwriting field, in 2006, she obtained similar employment with World Insurance Network. In that time the plaintiff further developed an expertise and a client base in the aviation industry.

119 In about 2008, World Insurance Network lost its accreditation as aviation underwriters. On learning of that fact, Mr Gelle offered the plaintiff employment with the defendant company. Mr Gelle had earlier become acquainted with the plaintiff because the defendant company was a client of World Insurance Network, and in that context, the plaintiff had frequent contact with him.

120 In those circumstances, Mr Gelle had recognised the value of the plaintiff's client base and her experience in the industry. He saw a business opportunity for his company and he then sought to tap that resource by employing the plaintiff.

121 The plaintiff left her employment with the defendant company on about 12 December 2008. She has not been in paid employment since that time. She was in receipt of workers' compensation payments for a considerable period of time after leaving the defendant's employ.

Plaintiff's pre-accident health

122 The plaintiff enjoyed good pre-accident health apart from experiencing a disc injury to her cervical spine on an occasion in 2002 when she was assisting her employer to pack and to move offices. She did not have any time off work as a result of that injury. The plaintiff had no history of pre-incident psychological problems. She had partly completed training for a pilot's licence but had discontinued this before the events in question due to the cost, and because of work commitments.

Plaintiff's employment with the defendant

123 The plaintiff commenced her employment with the defendant on 7 July 2008. She took that employment with the ambition of one day proceeding to a managerial position in the aviation underwriting industry. As a consequence of the alleged conduct of which she complains, the plaintiff left the employment of the defendant on 12 December 2008.

The alleged conduct

124 For the purposes of analysis, it is convenient to view the alleged conduct of Mr Gelle as being in two phases, and comprising a total of some twelve elements, according to the descriptions in the plaintiff's evidence. When setting out the alleged conduct, it is relevant to record that the descriptions that follow do not include any counter-assertions of the defendant or by Mr Gelle, except in the case of the twelfth element of the described conduct, because their position was that the alleged conduct in question never took place: T70.34

125 There was an initial phase of Mr Gelle's alleged conduct, which preceded the plaintiff's complaint about that conduct to Mrs Gelle on 20 September 2008. This was followed by the final phase of that conduct, which post-dated that complaint. The alleged conduct in question fell within twelve broadly identifiable categories.

126 The initial phase of the alleged conduct of Mr Gelle evolved according to the following chronology until the plaintiff took sick leave on 20 September 2008.

First element of conduct

127 On a date in about late August or September 2008, or about a month or two after she had started working for the defendant, the plaintiff said that Mr Gelle had positioned himself behind her whilst she was standing in the small kitchen area of the office when he pressed his belly against her, and through his clothing, he had started to press and rub his penis against her clothed buttocks or the small of her back ("the first conduct"): T19.26 to T21.43; T91.5.

Second element of conduct

128 Subsequently, on occasions she could not identify by dates, the plaintiff said that Mr Gelle would regularly call her into his own work area of the office with the expressed intention of wanting to show her something. In the course of one of those occasions, Mr Gelle allegedly placed his hand up under her shirt, and down her bra strap, and then grabbed her breast ("the second conduct"): T22.1 to T22.47. She described Mr Gelle as having touched her breast on a number of occasions: T94.42. In cross-examination she denied that such conduct was accidental, and called it groping which occurred on more than one occasion: T119.40.

Third element of conduct

129 The plaintiff said there was an occasion when, whilst at work, Mr Gelle made a gratuitous remark to her about the dress she was wearing, and suggested that she should wear dresses more often to show off her legs ("the third conduct"): T23.45.

Fourth element of conduct

130 Between July 2008 and September 2008, the plaintiff said she had received very good feedback from Mr Gelle concerning her work. She was however, apprehensive in the work environment because she said that Mr Gelle was in the habit of frequently screaming and shouting at people in the office, at least several times per week, and the plaintiff had witnessed such behaviour on many occasions. She said that on occasions he also shouted at her in a bad tempered manner ("the fourth conduct"): T26 to T27; T30.3. On one occasion, she had been subjected to three days of screaming from Mr Gelle, as already described: T125 to T126.

Fifth element of conduct

131 Thereafter, over time, the plaintiff said that Mr Gelle's unwelcomed approaches became more regular, to the extent of about two to three occasions per week, and comprised an occasion, on about 20 September 2008, when he placed his hand up the back of her dress and squeezed her on the bottom whilst she was standing near an electronic key pad and trying to enter the access code to the car park on her way out of the office at the end of a working day ("the fifth conduct"): T23.11 to T24.44.

Sick leave taken by plaintiff after first phase of conduct

132 Following the fifth conduct outlined above, the plaintiff said she saw her doctor who gave her a certificate so she could take 3 days sick leave from her work.

Plaintiff's telephone complaint to Mrs Gelle concerning the alleged conduct

133 During that period of the plaintiff's time off work on sick leave, Mrs Anna Gelle rang the plaintiff and asked her why she was not at work: T102.5. The plaintiff was distressed when she gave her evidence of that conversation in which she reported Mr Gelle's conduct to her, at T26.5 to T26.26, which she recounted as follows:

"Q. After Anna Gelle said to you, "Why aren't you at work", what did you say to her?

A. I said that about the incident in the garage with the hand up my dress and my bottom being touched.

Q. Just pretend it's a play.

A. Okay.

Q. "I said to Anna", tell us what you said to her, everything you said?

A. I said to Anna, I said, "I'm not at work because Warren put his hand up the back of my dress and squeezed my bottom", and she said to me, "Don't worry about it. I'll sort it out."

Q. Was there any more to the conversation that you can remember?

A. No, she just said, you know, "Come back when your, you know, your sick leave's up."

Q. So you had a few days off?

A. Yeah.

Q. And you went back to work?

A. Yes."

134 Significantly, the defendant challenged the fact of the above conversation and asserted the plaintiff had never discussed that matter with Mrs Gelle: T102.44. That position was not followed up by any evidence from Mrs Gelle and it was not supported by the unchallenged evidence of Mrs Richardson. The defendant made the positive assertion to the plaintiff that all she had discussed with Mrs Gelle was that Mr Gelle had touched her: T103.6.

135 The plaintiff said that after the conversation she had with Mrs Gelle whilst on sick leave, when she returned to work there was no let-up in Mr Gelle's unwelcomed behaviour towards her. The plaintiff said that Mrs Gelle had done nothing about her complaint over Mr Gelle's behaviour: T110.1. The plaintiff said that she ultimately considered it futile to complain: T123. She kept working because she had a mortgage to manage: T96.17.

136 In fact Mr Gelle denied that his wife had ever had a conversation with him along the lines recounted by the plaintiff and set out at paragraph [133] above.

137 After the plaintiff returned to work from sick leave, she described what I shall refer to as the further phase of Mr Gelle's alleged conduct, which continued until she ceased work on 12 December 2008.

138 Following her return from sick leave Mr Gelle's unwelcomed conduct towards her continued according to the chronology set out in the paragraphs that follow, which, for convenience, I will refer to as the second phase of the alleged conduct.

Sixth element of conduct

139 At the beginning of October 2008, the plaintiff said there was an occasion when Mr Gelle approached where she had been seated at her desk doing some typing. She said he sat down beside her and started sliding his hands up and down her trouser leg between her legs to a point just about an inch below her vagina ("the sixth conduct"): T27 to T28.

Seventh element of conduct

140 The plaintiff also described another event in October 2008 that occurred in the office when, whilst she was in the filing area, Mr Gelle approached her, pinned her hands by her side, held her hands behind her back with one of his hands having the effect of restraining and immobilising her, and with his other hand he forced her face into a position where he was able to place his lips onto hers for about 5 seconds, as he tried to kiss her ("the seventh conduct"): T28 to T29.

Eighth and ninth elements of conduct

141 The plaintiff described some seven or eight further occasions before December 2008, particularly in October and November 2008 (T31.18) when Mr Gelle would use the pretext of wanting to show her something on the computer and then make a grab for her and in those events (T30.47) Mr Gelle deliberately touched her breasts ("the eighth conduct"): T30.23 and on some four occasions he touched her vagina through her clothing ("the ninth conduct"): T30.33.

142 The plaintiff described one of those events in more detail, where, whilst she was standing at Mr Gelle's computer at his request in order to lean forward to view an email he wanted her to see, he ran his right hand up her trouser leg and touched her vagina through her clothing, and then ran his hand up to her breasts: T31.35 to T32.48. She described such touching activity as having occurred regularly: T33.39.

Tenth element of conduct

143 Another incident involving Mr Gelle as described by the plaintiff, but unidentified as to date, was when he allegedly propositioned her by telling her he wanted to make love to her, and that he thought she needed a baby ("the tenth conduct"): T33.43. The plaintiff described her various reactions of revulsion to Mr Gelle's unwanted attentions. At T34.13, she described her feelings following the proposition that comprised the tenth conduct, as follows:

"WITNESS: And, urgh, I just - just revolting. I, I, I just find it so hard to put into words. It's so disgusting that it kind of don't bear thinking about it. It, it's, it's just very difficult to kind of explain to you just, just what it - urgh - just what it - well, you know. It's, it's sort of like thinking you've been raped before you've been raped and you've not been raped. Do, do, do you know what I mean? It's - even though nothing like that ever happened, it did make me feel like I'd been raped even though I hadn't been and, and I, I just can't - even after I think it about it now, it's, it's just too revolting for words."

Eleventh element of conduct

144 The plaintiff described another incident at work on 12 December 2008, when, whilst she was sitting at her desk typing, Mr Gelle approached her from behind and placed a pencil down the back of her trousers and underwear and lodged it between her buttocks ("the eleventh conduct"): T33.18 to T33.27.

Twelfth element of conduct

145 The final contact the plaintiff had with Mr Gelle was on the day she left work on workers' compensation on 12 December 2008 ("the twelfth conduct"). That conduct occurred at the plaintiff's home. On that occasion, Mr Gelle turned up at her house uninvited and sought to obtain entry to her home in order to talk to her. At T34.44 to T35.7, the plaintiff's evidence concerning that event was as follows:

"Q. Did Warren Gelle contact you again after that day?

A. When I sent in the workers comp certificate, I asked the lady from workers comp to ring Warren Gelle and say I wouldn't be back at work. But then I was actually having my house painted at the time so I was in the little granny flat while they did the painting and what have you and he turned up at my house about 20 to 10.

Q. Is this in the day or the evening?

A. In the morning. Let himself in through the back gate, let my dog out much to my - cause she's got no road sense and then started shouting, you know, "Come on sweetheart. I want to talk to you.", and then began ringing the house and my mobile alternately and saying, "Come on. Let me in. I only wants [sic] to talk to you." So I ended up ringing triple-0 and the police came and, and removed him."

146 Mr Gelle provided an alternative version of his visit to the plaintiff's home on that occasion. He claimed he went to her house to see her about a workers' compensation notice that had come into the office: T183.9.

147 On 1 March 2009, the plaintiff lodged a workers' compensation claim alleging that she had suffered sexual harassment and inappropriate touching by her employer "many times" and that she had, as a result suffered stress and anxiety: Exhibit "G". That claim form identified the person to whom those matters had been reported as being Anna Gelle: Exhibit "G", page 4.

Plaintiff's reactions to the alleged conduct

148 The plaintiff said that the third element of the conduct as described above had caused her to become disgusted and repulsed. By the time she got home, on that occasion she said that she felt stressed, upset, and felt like crying: T24.47. On the following day, 21 September 2008, she consulted her general practitioner, who gave her a certificate for three days off work. At that time, the plaintiff said that she felt miserable, unable to sleep and unable to eat: T25;

149 The plaintiff described her general revulsion at Mr Gelle's conduct of which she complains: T34.20. She said she found it difficult to put those feelings into words: T33.50. At various parts of her evidence she described feelings of shock (T33.43; T33.24), disgust (T33.27), revulsion (T124.17), repulsion (T124.12), totally offensive (T116.14), horrific (T108.40), feeling sick in the stomach (T34.6), and a feeling akin to having been raped: T34.17; T124.16.

150 Eventually, in early December 2008, the plaintiff said she felt she could not tolerate Mr Gelle's behaviour any longer and obtained a note from her doctor that enabled her to go onto workers' compensation benefits. She then left work on 12 December 2008 and she did not return.

151 After the plaintiff left work, in early 2009, she received a death threat by telephone. That threat also included a component which indicated that she should not contact the police. She contacted the police who traced the origin of that call to the office of Mr Gelle's accountant: T35.43. The plaintiff thought the person who issued her with the death threat sounded like Mr Gelle but she could not swear to that: T36.5. Mr Gelle denied issuing any threats to the plaintiff: T243.15 to T243.27.

152 The plaintiff's psychological outlook had spiralled into a general decline. On 10 December 2008 she was certified as being unfit for work. She left her work on 12 December 2008 due to psychological incapacity: T36.27. She found it difficult to leave the house after she received the death threat: T35.32. She was referred for psychological and psychiatric assistance: T37. Her doctor prescribed antidepressant drugs for her: T36.31. She has remained unfit to go back to her former employment: T36.37.

153 The plaintiff was in receipt of multiple certificates indicating her unfitness for work: T37. As a consequence, for a time, the defendant's workers' compensation insurer paid her weekly payments of workers' compensation benefits: T37.34.

154 During 2009/2010, the plaintiff felt she did not want to work around strange men and strangers in an office environment as she felt this would make her too nervous: T37.44 to T38.5; T41.3; T41.12.

155 The plaintiff said she felt safe at home but if she had to go anywhere she would have feelings of dread, stomach churning, vomiting, increased visits to the bathroom, interference with sleep and the need to take extra Valium: T41.15 to T41.20. She felt she could not cope with interaction with others, even on the telephone: T38.22. She found it very difficult to concentrate and to be motivated: T39.34. The plaintiff has continued taking prescribed medications until the present time: T38.35.

156 The plaintiff felt that the experiences in question had caused her to feel her life had been ruined: T41.43. She does not feel comfortable socialising with people: T41.49. She does not do much in a day: T42.2. She fears going out and feels she is not reliable in the work sense: T42.17. She takes tranquilisers and sleeps for long hours: T42. She has lapses in her personal hygiene which causes her to have feelings of self-disgust (T43.8) and she experiences a bad feeling on waking: T43.5 to T43.26. The medical evidence which I shall shortly review, reveals that the plaintiff has suffered a significant psychiatric illness as a consequence of these cumulative events.

Medical and allied reviews

157 In the paragraphs that follow, a summary appears concerning the medical and allied attendances the plaintiff had after she left the employ of the defendant company.

Dr Kenneth Lee - general practitioner

158 The plaintiff's chronology reveals that on 10 December 2008 the plaintiff consulted her general practitioner Dr Kenneth Lee and complained of sexual harassment and bullying: Exhibit "A": T25.4. Dr Lee took a history of the plaintiff's complaint that she had been touched by her employer on her breasts and genital region. He diagnosed that the plaintiff was suffering from stress and anxiety caused by sexual harassment. He reiterated that diagnosis on 1 January 2009 when he re-certified the plaintiff as being unfit for work: Exhibit "D". There were no other reports or certificates tendered from Dr Lee.

Ms Wendy Sawtell - psychologist for workers' compensation insurer

159 On 29 January 2009, at the request of the workers' compensation insurer, the plaintiff was assessed by Ms Wendy Sawtell, a consultant psychologist. Testing revealed the plaintiff had extremely severe depression and anxiety scores, with mild to moderate stress scores.

160 Ms Sawtell considered that the plaintiff's profile was consistent with a diagnosis of adjustment disorder with mixed depression and anxiety. She considered there were significant barriers to the plaintiff's redeployment in the workforce. She also recommended ongoing psychological treatment.

Dr Marilyn Moore - psychiatrist for workers' compensation insurer

161 On 17 February 2009, at the request of the defendant's workers' compensation insurer, the plaintiff was assessed by Dr Marilyn Moore, a consultant psychiatrist. Dr Moore was of the view that the plaintiff had developed an adjustment disorder with predominant anxiety and depression as a result of serial harassment of a sexual nature in the workplace, which had resulted in her being unfit for work. Whilst Dr Moore considered the condition was temporary, she also noted the plaintiff had not yet reached a state of maximum medical improvement.

Ms Hanan Dover - forensic psychologist for victim's compensation claim

162 On 19 April 2010, for the purposes of pursuing a victim's compensation claim, the plaintiff was assessed by Ms Hanan Dover a forensic psychologist. Ms Dover recommended the plaintiff receive counselling sessions to assist the plaintiff in increasing her coping skills and to assist her to return to her level of pre-trauma functioning.

Bankstown Hospital emergency admission - 14 June 2011

163 On 14 June 2011 the plaintiff was taken by police and ambulance to Bankstown Hospital following a call to the police by the workers' compensation insurer: Exhibit "B". The notes record post-traumatic stress disorder that appeared to be related to sexual assault, as well as a history of depression and anxiety. Arrangements were made for the involvement of the community health team. The diagnostic impression was depression and anxiety.

Absent report of Dr Selwyn Smith - psychiatrist

164 Page 5 of the report of Mr Peter Briggs dated 5 August 2010 makes reference to a psychiatric opinion of Dr Selwyn Smith dated 19 July 2010. Dr Smith saw the plaintiff at the St John of God Hospital for treatment of her depression and alcohol dependence. She did not maintain contact with him due to her unreliability, which I consider to be a matter related to her psychiatric symptoms. Neither party tendered a report from Dr Smith.

Dr Marilyn Moore - second psychiatric report for insurer

165 On 21 July 2010, at the request of the defendant's workers' compensation insurer, the plaintiff was psychiatrically re-examined by Dr Moore. Her opinion was that the plaintiff had a diagnosis of chronic adjustment disorder with depression and anxiety. Dr Moore noted that treatment was being hampered by the plaintiff's feeling of dread, and fear of worsening symptoms due to having to repeatedly go over the history in the clinical setting.

166 Dr Moore considered that the plaintiff's symptoms were still due to the psychological condition directly related to her reported sexual harassment, attenuated by legal delays, and the lack of vindication from the criminal proceedings against Mr Gelle. At that time, Dr Moore was of the view the plaintiff had not yet reached a point of maximum medical improvement.

Mr Peter Briggs - consultant psychologist retained by insurer

167 On 1 August 2011, at the request of the workers' compensation insurer, the plaintiff was assessed by Mr Peter Briggs, a consultant psychologist. That report concluded that the plaintiff was suffering an adjustment disorder with depressed mood with underlying personality factors caused by the sexual harassment the plaintiff had experienced at work, with associated poor coping strategies. He identified a poor and guarded prognosis for that condition.

Dr Jeff Bertucen - plaintiff's consultant psychiatrist

168 On 26 September 2011, at the request of her solicitor, the plaintiff was assessed by Dr Jeff Bertucen, a consultant psychiatrist, who noted the plaintiff's state of de-motivation, anxiety, impaired memory, impaired concentration, and unfitness for more then 10 hours work per week, and the unlikelihood of improvement.

Bankstown Hospital emergency admission - 30 November 2011

169 On 30 November 2011, the plaintiff attended Bankstown Hospital with the presenting condition of depression with suicidal ideation against a background of a history of depression following a sexual assault.

Konekt - return to work assessment arranged by insurer

170 On 7 December 2011, a report was issued by Konekt, a rehabilitation provider, concerning the plaintiff's prospects of employment. That report noted that the plaintiff's presentation was of psychological issues that adversely impacted upon the return to work process.

Dr Bertucen - further report

171 On 16 January 2012, without the benefit of a further examination of the plaintiff, Dr Bertucen issued a second report in which he stated that he was unable to comment on the plaintiff's maximal state of medical improvement. He suggested the plaintiff be given psychiatric treatment.

Medical Assessment Certificate - Dr Robert Gertler, psychiatrist

172 On 13 April 2012, the plaintiff was assessed by Dr Robert Gertler, a consultant psychiatrist, to assess her degree of permanent impairment. Dr Gertler received the plaintiff's history, symptoms, treatment and presentation. He found her presentation was consistent and her symptoms to be of depression, being "down", having a poor appetite, self-neglect and social withdrawal. He concluded the plaintiff was suffering from a chronic adjustment disorder with depressed and anxious mood. He assessed her impairment to be permanent.

Appeal Panel Assessment; Mr Tanner, Dr Parmegiani and A/Prof Glazier

173 On 14 August 2012, an Appeal Panel Assessment was undertaken by Mr Craig Tanner, Dr Julian Parmegiani and A/Professor Nicholas Glazier. That review was conducted on submitted papers without a hearing.

174 The review panel considered the findings of Dr Gertler and the available evidence as listed in the assessment. The panel accepted the plaintiff could not work in her previous occupation. It also noted a capacity for work between 10 and 20 hours per week, and found a whole person impairment of 15 per cent.

Mr Simon Port - clinical psychologist retained for the plaintiff

175 Between September 2011 and August 2012, the plaintiff received psychological treatment form Mr Simon Port, a consultant psychologist. He noted that the plaintiff was suffering the serious psychological problems of depression, adjustment, trauma and anxiety, along with struggles over mood swings, reduced motivation, withdrawal, avoidance, guilt, fatigue, sleep difficulties, withdrawal, avoidance, sleep, cognition and relationships. He recommended the plaintiff continue to receive cognitive behavioural therapy.

Dr Graham George - consultant psychiatrist for the defendant

176 On 13 February 2013, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Graham George, a consultant psychiatrist. In his resultant report dated 18 February 2013, Dr George referred to a file of material that had been provided to him for the purposes of the assessment. The material in that file was not identified in the evidence.

177 Dr George considered the plaintiff 's diagnosis to be of a dysthymic disorder incorporating elements of post-traumatic stress disorder, agoraphobia, and diazepam dependency against a background of dependent personality traits. Dr George considered the plaintiff's prognosis to be guarded, with intermittent but persistent symptoms, with a lack of motivation and initiative. He considered the plaintiff incapable of performing her pre-injury duties, although he thought, speculatively, that she could possibly perform part-time work after undergoing cognitive behavioural therapy.

178 That opinion was in the context of the plaintiff's five-year history of agoraphobia, which represented a problem that needed to be overcome. Dr George commented that the plaintiff had not been particularly co-operative with treatment services. He considered that she needed psychological intervention. I do not take that opinion to be indicative of a failure to mitigate because of her underlying agoraphobia and related problems. Dr George was unable to say when the plaintiff may become capable of performing "suitable duties".

Dr Bertucen - further report

179 On 9 July 2013, the plaintiff was reassessed by Dr Bertucen. He noted she remained psychologically flat and dysphoric, with a nihilistic perspective on life and with a severe level of depression. He noted the plaintiff was taking a range of psychotropic medications.

180 Dr Bertucen reiterated the diagnosis of chronic adjustment disorder that has over time evolved into an atypical major depressive disorder, which was substantially attributable to her employment with the defendant company and the matters of which she complains in these proceedings.

181 Dr Bertucen considers the plaintiff was too psychologically impaired to return to work in any kind of structured office environment or to practice in her previous vocation.

Dr Bertucen - further report

182 On 12 May 2014 the plaintiff was reviewed by Dr Bertucen. He noted the plaintiff's report of excessive anxiety on leaving the home and he noted that this problem has influenced her non-reconnection with her treating psychologist. He noted anhedonia, despondent mood, emotional numbing and demoralisation as the plaintiff's current symptoms. He described her presentation as flat and melancholic.

183 Dr Bertucen considered the plaintiff's condition to have remained unchanged, with the diagnosis of major depressive disorder with features of hypersomnia and melancholic mood. He considered that she needed psychological and psychiatric treatment and that she remained disabled with anxiety.

184 Dr Bertucen rejected the proposition that the plaintiff may be malingering. It was not a proposition put to her in cross-examination. Dr Bertucen considered the plaintiff to be completely incapable of working in her previous employment from the psychological perspective. He considered the plaintiff would be incapable of gainful employment in the 6 - 9 months following his assessment.

Disabilities and their evolution

185 Given my acceptance of the plaintiff's credit as a witness, and my acceptance of her evidence generally, I propose to treat the plaintiff's history as summarised in the medical evidence and referred to in the paragraphs that follow as evidence of the plaintiff's difficulties that she experienced resulting from the humiliating and systematic pattern of sexual harassment to which she had been subjected in the employ of the defendant: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

186 The plaintiff's ongoing problems centre around the psychiatric diagnoses.

187 Initially, the plaintiff brushed off the defendant's sexualised behaviour. She steeled herself to do so because she needed to keep her job and manage her mortgage. However, over time, the effect of Mr Gelle's continued sexual harassment of her, and the intimidation and bullying that he had directed at her, eventually took its toll on her.

188 The plaintiff's sense of helplessness was to a degree palliated by her regular supportive telephone talks with her father in the UK. However, Mrs Gelle's failure to act on and "sort out" the plaintiff's complaints about Mr Gelle's harassing behaviour, and the failure of Mr Gelle to desist from his unwelcomed conduct, ultimately weakened the plaintiff's ability to tolerate and withstand Mr Gelle's behaviour and to cope, to the point that she was certified as being medically unfit to continue in her work, a situation that has remained constant since she left work on 12 December 2008 due to her documented and diagnosed psychiatric illness.

189 Despite the treatment, interventions and reviews described in paragraphs [157] to [184] above, the plaintiff has been left with significant and disabling psychological symptoms that adversely affect her ability to function in her daily life and in her ability to work.

190 The fact that the workers' compensation insurer continued to pay the plaintiff's expenses and weekly compensation for such a prolonged period is tellingly supportive of her claims. The reason those payments were stopped was because of the view the insurer took of the plaintiff's non-attendance at psychological counselling sessions. In my assessment, that adverse view was groundless because it failed to reflect the realities of the plaintiff's agoraphobia, feelings of dread, the difficulties she had been experiencing in leaving her home (T41.15), including for treatment, and her upset at having to repeatedly go over and recount the events in the clinical setting.

191 The cumulative effect of Mr Gelle's unwelcomed behaviour and the defendant's failure to act to protect the plaintiff by curtailing that behaviour has had a lasting and permanent deleterious effect on the plaintiff's ability to lead a normal life. She has also lost her home because she could not keep up the mortgage payments.

192 The plaintiff is agoraphobic. She suffers from post-traumatic stress disorder, depression, anxiety, and has a chronic adjustment and major depressive disorder. She is socially withdrawn. Her disabilities include difficulties sleeping, concentrating, with cognition and motivation problems and she now has a nihilistic perspective on life. She is in need of ongoing psychiatric treatment.

193 The entrenched nature and duration of these problems and the content of the medical evidence does not give rise to any reasonable optimism or for any definite expectation of significant remission of symptoms.

Issue 1 - Sexual harassment, bullying and intimidation?

194 In weighing the respective testimonies, I am satisfied that the plaintiff gave truthful evidence concerning the alleged unwelcomed conduct of Mr Gelle towards her in the workplace. I therefore accept and find that each of the twelve elements of conduct the plaintiff has alleged against Mr Gelle and the defendant in fact occurred as the plaintiff has alleged, as described in paragraphs [124] to [156] above.

195 In coming to that conclusion, and in accepting the plaintiff's evidence, for the reasons that follow, I have rejected the evidence of Mr Gelle in which he denied that the conduct in question had ever occurred. I find myself quite unable to accept the evidence of Mr Gelle in that regard on any aspect of his contentions concerning the conduct alleged against him by the plaintiff.

196 Mr Gelle was a bombastic witness who sought to force his views in a manner that did not accord with a simple recounting of the facts as he understood or believed them to be. Instead, he was argumentative, he sought to avoid answering questions that posed potential difficulty for him. When cross-examined, he sought to introduce extraneous matters into evidence that were not identified or introduced in his evidence in chief.

197 For those reasons, as well as those identified in my analysis of Mr Gelle's credit as a witness at paragraphs [60] to [71] above, I therefore concluded that Mr Gelle was an entirely unsatisfactory witness whose evidence should not be accepted on any matter in controversy between the parties.

198 In testing whether the plaintiff's version of events, which was not of itself inherently improbable, whilst I have had regard to the evidence of Mrs Richardson, Mr Lyon, Mr Fogarty and Mr Levin, I consider that body of evidence does not provide a sound basis for rejecting the evidence of the plaintiff. In addition to the matters I have set out in relation to my assessment of the credibility of the testimony of those witnesses, the following observations are also relevant.

199 Mrs Richardson's evidence was corroborative of the plaintiff's conversation Mrs Richardson had overheard on the vehicle loudspeaker, in which the plaintiff had reported Mr Gelle's offensive behaviour to Mrs Gelle. Mrs Richardson's account of that conversation, at T160.35 to T161.1, was in the following terms:

"Q. Where did the conversation take place?

A. It was in the car.

Q. Who was in the car?

A. Myself and Anna were in the car, and she had the phone on loud speaker.

Q. Who was speaking on the other end?

A. Janette.

Q. What did you hear Janette say to Anna Gelle?

A. She just said she was sick of him trying to touch her and she just wanted him to leave her alone.

Q. What did you hear Anna Gelle say back to Janette?

A. And she said, "I'll talk to him about it." She said, "I'll try and talk to him as usual," she said, but she said, "You know what he's like." End to that, to that conversation."

200 When cross-examined on the identified topic of that conversation, it was implicit in the cross-examiner's question that the conversation occurred as alleged, as appears in the extract of her evidence at T164.8 to T164.31, as follows:

"Q. The conversation you overheard in the car with Anne Gelle, is it not the case that the only thing that Ms Trolan said in that conversation is she was sick of Mr Gelle trying to touch her?

A. Yes, and also the way, the way he was treating--

HIS HONOUR: Well, no, you can't cut her answer off like that because it doesn't suit you. She didn't finish her answer and I'll now allow her to continue.

WITNESS: Can I--

HIS HONOUR

Q. Yes, continue.

A. She basically said she, yeah, and the way he was treating myself and Anna in the office, she was, she was worrying about, she was very worried about Anna.

DAVIES

Q. Ms Trolan didn't say in that conversation anything about being touched on any particular part of the body?

A. She just said she, she just said she wished he'd just stop patting her and touching her, you know, and let her get on with her job."

201 That evidence was not rebutted by any other evidence. If the plaintiff's version of that conversation could have been rebutted, such rebuttal could have been expected to have been obtained through evidence from Mrs Gelle, but she was not called as a witness: Browne v Dunn (1894) 6 R 67.

202 I am satisfied that the above conversation occurred as was recounted by the plaintiff in her evidence. I am reinforced in that view by the corroborative evidence of Mrs Richardson, which I accept, and which of itself was not inherently improbable.

203 In coming to that view I do not accept the notion that Mrs Richardson was actuated by vengeful motives towards the defendant having regard to the history of her employment issues with the defendant, and with Mr Gelle. I considered that she gave her evidence reasonably and truthfully.

204 The cited conversation leads to a question as to why the plaintiff would have had the need to raise the matter with Mrs Gelle in the first place. Significant to that issue is the fact that Mrs Gelle initiated the conversation to ascertain why the plaintiff was not at work, and the ensuing conversation as recounted, occurred in the presence of Mrs Richardson.

205 In accepting the evidence of the plaintiff which described the harassing, bullying and intimidating conduct in question, I have not overlooked the evidence of Mr Lyon, Mr Fogarty and Mr Levin. I have already outlined my reasons for concluding that they gave unsatisfactory and unreliable evidence on the contested matters of fact. In light of those conclusions, I prefer and accept the plaintiff's evidence on those matters.

206 Before leaving the issue of my acceptance of the plaintiff's account of Mr Gelle's offensive conduct, it is necessary to say something about the tendency notice relied upon by the plaintiff pursuant to s 97 of the Evidence Act 1995: Exhibit "E".

207 The plaintiff relied on that notice to show that Mr Gelle had a tendency to act obscenely and inappropriately as alleged by the plaintiff in relation to the analysed twelve elements of his conduct earlier described. Implicit in that allegation, and confirmed by the nature of Mr Gelle's criminal convictions, is the fact that his behaviour the subject of the convictions, and those twelve elements of conduct, both involved disinhibition on his part.

208 That said, the disinhibited acts of public indecency the subject of the convictions did not involve Mr Gelle touching other persons, whereas his behaviour towards the plaintiff, in the main, did, in all but the third, fourth, tenth and twelfth of those twelve elements of the conduct.

209 Although the conduct involved in this case was to a degree different to the conduct which was the subject of the convictions, both involved sexualised behaviour on the part of Mr Gelle. It was that element of commonality which made the evidence relevant, not only on the question of whether it was likely that Mr Gelle would have behaved towards the plaintiff in the disinhibited manner alleged, but also on the question of his credit, given the manner in which he responded to questions on those matters.

Issue 2 - Was the plaintiff's employer negligent?

210 As her employer, the defendant owed the plaintiff a non-delegable duty to take reasonable care to avoid exposing her to an unnecessary risk of injury in the workplace: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, at pages 312 - 313; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, at [10], citing Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, at p 25; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12].

211 In the context of this case, it hardly needs stating that the scope or content of this duty required the defendant to ensure the plaintiff was not bullied, intimidated or sexually harassed in the workplace: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13]. This is especially so once the plaintiff made it known to her employer that she found such conduct repugnant and unwelcome.

212 As the Civil Liability Act 2002 does not apply to workplace injuries, the question of whether the defendant was negligent in the circumstances as alleged must be determined according to well settled common law principles that require the assessment of a reasonable response to a foreseeable risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

213 That determination must proceed by way of a prospective analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [126]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [65] to [69].

214 In support of her claim that the defendant had breached the duty of care owed to her, the plaintiff relied upon the following allegations of negligence:

(a) Failing to provide the plaintiff with a reasonable safe place of work;

(b) Failing to take reasonable care for the plaintiff's safety;

(c) Placing the plaintiff in a position of peril in the circumstances;

(d) Subjecting the plaintiff to repeated acts of physical and verbal sexual harassment;

(e) Failing through its servants or agents to take steps to stop Warren Gelle from sexually harassing the plaintiff;

(f) Failing to prevent Warren Gelle from harassing the plaintiff;

(g) Failing to provide Warren Gelle with any, or any adequate, counselling or training in relation to workplace harassment.

215 A component of the plaintiff's case is that the defendant company should be held to be vicariously liable for Mr Gelle's conduct. In contrast the defendant claims the conduct in question, if established as I have found to be the case, should be characterised as Mr Gelle's intentional acts, and in consequence it was argued that the defendant should not be found liable for those acts.

216 Several things need to be said about the defendant's submissions in that regard, leading me to the conclusion that those submissions should not be accepted.

217 First, the question of whether the company should be imputed to have had knowledge of Mr Gelle's conduct depends upon how Mr Gelle's position in the defendant company is to be viewed: Nationwide News Ltd v Naidu & Anor [2007] NSWCA 3767, at [41].

218 In this case, it is clear and beyond dispute that Mr Gelle was the controlling mind, will and embodiment of the company, and as such, had the requisite knowledge of the offending circumstances that evolved over time. He worked in close proximity to the plaintiff in a position of authority over her and was therefore able to impose himself on her in the manner I have found: NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, at [42]. This justifies a finding that the defendant company is vicariously liable for his aberrant conduct towards the plaintiff and I therefore make that finding.

219 Secondly, if I be wrong in reaching that conclusion, it is nevertheless plain that in September 2008, when the plaintiff complained to Mrs Gelle, who was another director of the company, that Mr Gelle's conduct towards the plaintiff was unwelcome. That circumstance required the defendant company, through its responsible directors, to engage itself in the task of addressing the discharge of its duty of care to the plaintiff.

220 In each of the above scenarios, both when the plaintiff repeatedly rebuffed Mr Gelle's unwanted advances that comprised the first, second and fifth elements of the conduct of Mr Gelle before she took sick leave, and in the circumstances of the plaintiff's rebuffs of the sixth, seventh, eighth, ninth, tenth and eleventh elements of Mr Gelle's conduct, at each stage, a reasonable employer aware of the circumstances would have taken steps to avoid what is now known to have occurred: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [126].

221 Whilst it may be argued that initially, the employer had no reasonable cause to suspect that the plaintiff may be vulnerable to developing a psychological illness as a result of Mr Gelle's behaviour, that could not reasonably be the case after September 2008, when the employer knew that the plaintiff went on sick leave for psychological reasons as a result of Mr Gelle's unwanted attentions.

222 At that time, a reasonable employer in the position of the defendant, knowing there had been no physical injury in the plaintiff resulting in the need to take sick leave, nevertheless ought to have realised that the plaintiff was vulnerable to developing a psychological illness if the conduct continued. This was the very purpose of her sick leave.

223 In my view, that conclusion arises from the fact that the plaintiff obtained medical support for her sick leave in the form of a certificate from her doctor, and from the specific content of the plaintiff's complaint to Mrs Gelle.

224 At that time, in September 2008, a reasonable employer would have acted to protect the plaintiff from being subjected to Mr Gelle's unwanted behaviour, especially since the plaintiff told Mrs Gelle she was sick of that behaviour. Even if Mr Gelle was unable to control his behaviour in that regard, at that time, it was incumbent upon Mrs Gelle to act effectively in that regard in the discharge of the duty of care owed by the company.

225 The evidence of the plaintiff and Mrs Richardson I have already cited, reveals Mrs Gelle had acknowledged that there was a need for her to act. She said she would talk to Mr Gelle about his behaviour and sort the problem. This was a recognition of the need to accede to the plaintiff's request that something be done to stop Mr Gelle from touching her in the manner she described.

226 Whatever Mrs Gelle did by way of response to those circumstances is not known as she was not called as a witness. Although Mr Gelle denied that his wife had spoken to him about the behaviour in question, given my findings concerning Mr Gelle's credit as a witness, I am not prepared to accept his denial in that regard.

227 After September 2008, Mr Gelle's offensive conduct continued. This was to the point that on certified medical grounds, the plaintiff was no longer able to continue to work due to what has been clearly diagnosed as psychological illness for which she sought psychological, psychiatric and other treatment. This is described more fully in the medical evidence that I have reviewed at paragraphs [157] to [184] above.

228 In those circumstances I am satisfied the plaintiff's psychological illness as described in that evidence has been caused by Mr Gelle's offensive and sexually harassing behaviour, and this was also contributed to by his bullying and intimidatory behaviour, as has already been described. The plaintiff's resultant psychiatric condition was materially contributed to by the defendant's apparent inaction in response to the plaintiff's complaint.

229 I find, but for that conduct on Mr Gelle's part, the plaintiff would not have incurred the psychiatric illness in question, and she would not be in the situation where she feels that her life has been ruined: Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182.

230 The fact that the offending behaviour of Mr Gelle comprised the twelve elements I have analysed, and the fact that some of those elements comprise an array of occurrences within them, leads me to conclude that Mr Gelle's harassment of the plaintiff should be characterised as having been systematic in its nature: Nationwide News Ltd v Naidu & Anor [2007] NSWCA 3767, at [34].

231 In my view, those problems could have been avoided by the defendant by relatively simple means. The fact of Mr Gelle's systematic harassment and bullying of the plaintiff should have been on the employer's radar, especially after September 2008.

232 In my view, it is starkly apparent that there was a failure on the part of the defendant to act appropriately and to require and ensure that Mr Gelle's offensive and harassing conduct towards the plaintiff cease.

233 The defendant failed to provide the plaintiff with a safe place of work, it failed to take reasonable steps to care for the plaintiff's psychological wellbeing, and it exposed the plaintiff to the peril of Mr Gelle's continuing and repeated sexual harassment, bullying and intimidation.

234 The remedial steps required to avoid the plaintiff from suffering harm were quite simple and non-problematic. Mr Gelle demonstrated clear intellectual ability and acumen. He ought to have been counselled to desist from his behaviour following the plaintiff's complaints to Mrs Gelle. He had been amenable to counselling in the past when he felt compelled to seek it out.

235 As the controlling will and embodiment of the defendant company, Mr Gelle ought to have reasonably foreseen from the plaintiff's firm rebuffs of his behaviour, that his conduct was likely to be detrimental to her wellbeing. This should have led to the realisation by him that it was necessary for him to desist from his unwelcomed behaviour. Furthermore once Mrs Gelle had been made aware of the problem, it ought to have been reasonably foreseeable to her that any continuation of Mr Gelle's aberrant behaviour was likely to be psychologically damaging to the plaintiff.

236 The defendant company ought to have arranged for Mr Gelle to receive appropriate remedial counselling from a skilled professional person in order to help him to realise that his behaviour was wrong, inappropriate, and should cease.

237 At the very least, a facilitated workplace conciliation or a mediation should have been convened between Mr Gelle, the plaintiff and Mrs Gelle, with proper support made available to the plaintiff. This was not done.

238 Before the events in question Mr Gelle had already been the subject of psychological assessment and treatment for his aberrant behaviour of a sexual nature. This was in the form of sessions with a psychologist, Ms Carney, whose report of 1 May 2007 was in evidence: Exhibit "J". It can therefore be safely assumed that he had ready professional access to Ms Carney and it would have been a relatively simple matter to seek such advice and assistance once the plaintiff's concerns had arisen.

239 Mrs Gelle must have been aware of Mr Gelle's previous need for Ms Carney's assistance as she had been paying the bills with regard to those matters: T221.14 to T221.26. Although that evidence referred to Mrs Gelle having paid his legal bills, I infer from the circumstances that this included the medico-legal expense of engaging Ms Carney to assist Mr Gelle with his legal problems.

240 I infer from those circumstances that Ms Carney's door would have been kept open for Mr Gelle to make appointments for her to see and for her to assist Mr Gelle with his behavioural problems. He had strong reasons to seek out her assistance in that regard because at the time of the events that are the subject of this litigation, Mr Gelle was still on a current bond to be of good behaviour. This was no doubt a contributing factor to his vigorous defence of the criminal charges that were brought against him by the police in connection with these events.

241 In my view, the failure of the defendant to effect by reasonable and available means a cessation on Mr Gelle's behaviour, was inexcusable.

242 For the reasons I have outlined, I find that those circumstances were reasonably avoidable had the defendant fulfilled its duty to take reasonable care for the wellbeing of the plaintiff in the workplace. It negligently failed to do so, and that failure relevantly caused the plaintiff to suffer recognised psychiatric illness.

Issue 3 - Was there any contributory negligence?

243 The defendant claimed there was contributory negligence on the part of the plaintiff. The plaintiff denied that there was any contributory negligence on her part. The defendant relied upon the following allegations:

(a) Failing to take reasonable care for her own safety;

(b) Failing to inform the defendant of her psychological symptoms prior to 15 December 2008;

(c) Failing to inform the defendant of any allegations of bullying and/or harassment prior to 15 December 2008.

As to (a) - alleged failure to take care for her own safety

244 The actions of Mr Gelle were uninvited, unprovoked and unwelcome. He was, in effect, her employer as he was the controlling mind of the defendant company which had the duty of care to provide and maintain a safe workplace.

245 The plaintiff was in a position of vulnerability concerning her continued employment. She sought to avoid Mr Gelle's advances until she was no longer able to psychologically cope with Mr Gelle's behaviour. This ultimately led to her complaint to Mrs Gelle. In the circumstances, there was little else the plaintiff could have done to protect herself without leaving her employment earlier than she did. I therefore reject the proposition that the plaintiff failed to take care for her own safety.

As to (b) - alleged delay in reporting psychological symptoms

246 I do not accept that the plaintiff delayed reporting her psychological symptoms until 15 December 2008. In that regard, I accept the evidence of the plaintiff and Mrs Richardson which indicates that as far back as in September 2008, a report of Mr Gelle's behaviour was made to Mrs Gelle, and notwithstanding that report, the unwelcomed behaviour of Mr Gelle continued unabated. Additionally, her medical certificate predated 15 December 2008, and the plaintiff left her work on 12 December 2008.

As to (c) - alleged failure to report bullying and harassment prior to 15 December 2008

247 The allegation of the alleged failure of the plaintiff to report Mr Gelle's bullying and harassing conduct prior to December 2008 must fail for the same reasons set out in the immediately preceding paragraph.

Issue 4 - Assessment of damages

248 In view of my findings on liability, the plaintiff is entitled to have an assessment of her claim for damages.

249 Under the applicable scheme for damages for workplace injuries, the plaintiff's claim for damages is limited to the following heads of damage:

(a) Past economic loss;

(b) Past loss of superannuation;

(c) Future economic loss;

(d) Future loss of superannuation;

(e) Recoupment of tax paid on weekly workers' compensation payments: Fox -v- Wood [1981] HCA 41; (1981) 148 CLR 438.

250 The damages submissions on behalf of the plaintiff sought an assessment of the order of $886,288. In contrast, the defendant made submissions that criticised the plaintiff's damages submissions without making quantified counter-submissions.

Mitigation of loss

251 Before proceeding to assess the plaintiff's damages it is necessary to deal with the issue of mitigation of loss: s 151L of the "WC Act".

252 In the circumstances of the plaintiff's case and in view of the effect Mr Gelle's conduct had upon her, it was reasonable that the plaintiff took steps to seek appropriate medical and allied treatment: s 151L(1) and s 151L(2)(a) of the "WC Act". The onus is on the plaintiff to show that she has taken all reasonable steps to mitigate her damages: s 151L(3) of the "WC Act".

253 The phrase "all reasonable steps" has been judicially considered in connection with the obligation of an injured person to mitigate their damages pursuant to s 39(2) of the now repealed Motor Accidents Act 1988: Brogan v McGeary, unreported, NSWCA, 40273 of 1994, 7 April 1995.

254 In that case, at [30], Kirby P held that the reference to "all" in the sub-section must be understood in the context in which it appears, namely that it is intended to qualify only those steps that are reasonable to take in the circumstances.

255 In Brogan v McGeary, at [30], Kirby P also observed:

"... All that needs to be taken into account are "the reasonable steps". There will always, in theory, be additional "steps" which an injured person might take. On a particular day, he or she might have gone elsewhere. A search overseas or interstate might have been possible A constant barrage of attendances on theoretical employers might be open to the injured person. But this is not the object which s39 is designed to secure. In its context, the section must be given a construction to encourage the taking of reasonable steps by injured persons to promote their restoration to economic capacity. ..."

256 That statement in Brogan v McGeary was cited with approval by McColl JA in Arnott v Choy [2010] NSWCA 259, at [160], where it was held that the consideration of the issue of mitigation must take place in the context of a consideration of the steps reasonably available to the injured person to find employment, taking into account the relevant injury and related physical and emotional difficulties.

257 That is in accordance with well settled principles to the effect that the reasonableness of a person's decision to refuse treatment must be judged on the basis of information known to that person at the time of the relevant decision: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345; NSW v Fahy [2006] NSWCA 64, at [140].

258 In the present case, the defendant tendered the workers' compensation payments schedule relating to the plaintiff's claim comprising some 68 pages of payment details: Exhibit "4". The payments are not all listed in chronological order. That exhibit shows that until 2012, the workers' compensation insurer has paid the plaintiff's expenses for some 41 general practitioner attendances, some 6 specialist psychiatric attendances, 62 counselling consultations with a psychologist, excluding case conferring with the insurer, numerous rehabilitation provider services including some services provided by the St John of God psychiatric hospital, and scores of payments for regular pharmaceutical expenses.

259 Exhibit "4" also shows that on 22 October 2012, the insurer made s 66 payments for permanent impairment totalling $22,000. That exhibit also shows that the insurer made payments for some 8,223 hours of work incapacity. Although the chronology of payments in that document is difficult to follow, it shows payments to have been made to the plaintiff on 23 November 2012 in the sum of $15,000 for pain and suffering (Exhibit "4", page 30) and the last pharmaceutical services payment was made on 17 January 2014: Exhibit "4", page 32.

260 The plaintiff has tried to mitigate her loss of earnings by attempting some insurance broking work by contacting former clients: T40. She did so under the auspices of another broker's business, for which she was paid a few hundred dollars in commissions: T40.46. However, this was not a longterm proposition for her as she did not feel comfortable being in an office environment again: T41.3.

261 The plaintiff also attempted to start her own broking business under the umbrella of that other broker, but she never moved into that employment situation, and she ultimately handed over her contacts to that broker as she found that work involved her experiencing difficulties with concentration and motivation: T39.33. She is disappointed with how her life has turned out following the events in question and wants to return to the UK: T41.40.

262 In the present case the defendant sought a reduction in the plaintiff's damages and submitted that the plaintiff had failed to mitigate because of her "... tendency to dishonour appointments is either premised in a belief of tertiary gain or is treatable which the plaintiff is not pursuing": Defendant's written submissions, paragraphs 105 - 106.

263 That particular submission must be rejected for two reasons.

264 First, the plaintiff was not given the opportunity to fairly consider and rebut the assertion that she was actuated by motives involving "tertiary gain": Browne v Dunn (1894) 6 R 67.

265 Secondly, as is explained in the paragraphs that will shortly follow, the fact that the plaintiff ceased attending psychological counselling sessions must be considered in the appropriate context, and in the light of the expert opinions.

266 The defendant further submitted that the plaintiff failed to mitigate her economic damages by failing to seize the opportunity to return to the work force in her industry in late 2009 when she attempted to start her own business, and instead transferred her client base to another broker: Defendant's written submissions, paragraphs 107 - 108.

267 That further submission must also be rejected because it fails to take into account the deleterious impact of the plaintiff's significant psychological disabilities, which notably included, amongst other things, difficulties with concentration and motivation. Those matters impaired her ability to benefit from the opportunity to pursue the work referred to in the submission under present consideration.

268 The relevant context was that when the plaintiff ceased looking for alternative employment, which was due to her psychiatric condition and debilitated psychological condition, the workers' compensation insurer ceased making payments: T9.45. This did nothing to improve her psychological outlook and employability.

269 Contrary to the defendant's submissions, I consider that in the present case, the plaintiff has discharged her obligation under s 151L of the "WC Act".

270 It was reasonable that the plaintiff seek medical and allied treatment, including from psychiatrists and psychologists, as well as take prescribed medication. She did "all" those things, as required by s 151L. This is demonstrated by a review of the detail of the payments for attendances as set out in the 68 pages that comprise Exhibit "4". The last of those payments was for medication on 17 January 2014.

271 In the present case, the plaintiff's rehabilitation was not assisted by the cessation of weekly payments by the insurer. In other respects, she has sought out and obtained treatment, and sought to obtain alternative work, albeit unsuccessfully, due to her disabilities.

272 Whilst it is true that the plaintiff stopped seeing a psychologist, as has been highlighted by the defendant's submissions, this must be seen as being due to the effects of her condition, including her agoraphobia, and the distressing symptoms she experienced in leaving her house, as well as the re-traumatising effect of having to repeatedly go over the emotional problems she has encountered due to the sexual harassment she experienced in the employ of the defendant: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345.

273 She still sees doctors and takes medications that she is prescribed. There is no evidence that she has unreasonably failed to mitigate her losses to any extent.

274 The defendant tendered no evidence along the lines contemplated by s 151L(3) to the effect that the plaintiff was asked to undertake particular mitigatory steps which she refused to take after having her attention drawn to such matters.

275 For the reasons outlined above, I reject the defendant's submission that the plaintiff has failed to mitigate her damages. I now turn to the assessment of those damages.

Past economic loss

276 The plaintiff claimed damages for loss of income from 12 December 2008 until the hearing in the amount of $282,000.

277 That submission proceeded upon the premise that over the period to the date of the hearing, having regard to the base rate of $900 per week net at the time she left work, together with annual CPI increments that would have been applied since then, an average loss of $1020 per week net over the period to the time of the hearing represented a reasonable method of quantification of the plaintiff's past loss of income.

278 Subject to a number of qualifications that I will shortly identify, I consider that general approach to be an appropriate method by which to assess this past loss.

279 The plaintiff's ongoing disabilities have been identified at paragraphs [185] to [193] above. The medical and allied opinions reviewed at paragraphs [157] to [184] above indicate the common theme of the plaintiff's psychological unfitness to her former employment. That unfitness has continued from the time the plaintiff left work on 12 December 2008 and until the time of the hearing, a period of 298.57 weeks.

280 The plaintiff's continued absence from work in that period has been due to her symptoms of depression, anxiety, social withdrawal, together with the stress and adjustment disorders that have been induced as a result of the intimidatory and bullying sexual harassment she had been subjected to whilst she was in the employ of the defendant company.

281 There is consensus within the opinions of the psychiatrists who have examined the plaintiff to the effect that she is unfit for her pre-accident employment, and at best, is only fit for limited suitable duties.

282 As already analysed at paragraphs [251] to [275] above, I have found that there has been no relevant failure on the part of the plaintiff to mitigate the loss of her employment and earning capacity to date.

283 At the time of leaving her employment with the defendant, the plaintiff was on a gross salary of $60,000: T205.39; T255.47. But for the matters complained of, she was looking forward to a future of advancement in her employment in the aviation insurance industry. She was in a niche occupation. Her skills and reputation in the aviation insurance industry were well recognised. This is confirmed by the portion of Mr Gelle's evidence which I accept, concerning the value of the plaintiff's client base and experience. In my view, this suggests the plaintiff was well positioned for advancement in her career, if not with the defendant company, then its equivalent. All of that is now lost to her as her present situation is one of entrenched unfitness for work on psychological grounds.

284 In my view the plaintiff's 2008/2009 income tax return which forms part of Exhibit "1" is not truly indicative of her earning capacity in that year because it included workers' compensation payments.

285 A gross base salary of $60,000 per annum is the equivalent of $1153.84 per week. In round figures, after applying the applicable tax scales, this is the equivalent of $900 per week net. In my view, that weekly amount should serve as the baseline for calculation of the plaintiff's loss of income in the first year of her loss of earning capacity.

286 For the subsequent four years (years 2 - 6), and for the subsequent fifth part year (year 6) up to the date of the hearing, I accept the general approach of the submission made on behalf of the plaintiff that annual CPI increments, which I assess at about 3 per cent per annum, should be applied to the base rate of that first year of loss. The resultant calculations of loss of earnings from 12 December 2008 to the time of the hearing, appear in the table that follows:

Year	Weeks	Net Rate + 3%	Assessed Loss
Year 1	52.00	$900.00	$46,900.00
Year 2	52.00	$927.00	$48,204.00
Year 3	52.00	$954.81	$49,650.12
Year 4	52.00	$983.45	$51,139.40
Year 5	52.00	$1012.95	$52,673.40
Year 6	38.57	$1043.33	$40,241.23
Total			$288,808.15

287 The above table makes no allowance for any CPI increment in Year 1.

288 Recognising that the above calculations may incorporate a degree of imprecision because the precise figures for tax and CPI were not submitted for evaluation, I propose to round the calculated sum of $288,808.15 down to the net sum of $285,000. This also allows for an offset of the plaintiff's modest mitigatory earnings which are of the order of several hundred dollars.

289 I therefore assess the plaintiff's damages for past economic loss in the net sum of $285,000.

Past loss of superannuation

290 On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of the award of $285,000. I accept that submission and I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $31,350.

Future economic loss

291 The primary future economic loss submission made on behalf of the plaintiff was that the claim for future loss of earning capacity should be assessed at the rate of $1020 per week over the remainder of the plaintiff's working life to age 67 years, which, after incorporating a conventional discount of 15 per cent on account of potential adverse vicissitudes, amounted to $502,426. That projection assumed a total loss of earning capacity.

292 In my view there are several flaws inherent in that submission that precludes its acceptance.

293 First, the rate of $1020 per week net is an average figure submitted on behalf of the plaintiff as applying to nearly 6 years loss of earnings. It is therefore too conservative to fairly represent the present full rate of loss for future projection.

294 Secondly, in favour of the defendant, some significant amount must be allowed as an offset to allow for the future prospect of the plaintiff experiencing a partially revived residual earning capacity because the medical evidence discloses that she is planning to move back to the UK once this litigation concludes and some of the concomitant stressors are behind her.

295 In those circumstances, there is a distinct possibility that the plaintiff may well have a revived or residual measure of earning capacity, albeit nowhere near the unrestricted capacity she would have had were it not for the lasting adverse psychological effects of the damaging behaviour she had been subjected to at the hands of Mr Gelle and the subsequent inactions of the defendant company.

296 The secondary submission on future economic loss made on behalf of the plaintiff recognises that over time the plaintiff may recover some of her earning capacity but the prospect of recovering half of that capacity was submitted to be too optimistic on the evidence. I accept that submission. An assessment of that potential for a revived capacity is therefore necessary.

297 In that regard, taking the current published base rate of Australian Average Weekly earnings for Full Time Adults, namely $1482.50 per week gross, which is the equivalent of $1125 per week net. Having regard to the plaintiff's disabilities and the medical and allied opinions already reviewed, I consider that a fair assessment of the potential for a revived residual earning capacity, averaged over the remainder of the plaintiff's working life, is one-third, or $375 per week net. Accordingly, I assess the weekly sum for projection of the plaintiff's future loss of earning capacity should be the sum of $750 per week net.

298 I consider that this approach to assessment is reasonable because the extent of an assumed partially residual earning capacity remains uncertain in view of the entrenched nature of the plaintiff's psychological unfitness for work over an extended period of almost 6 years. There is only limited scope for optimism in those circumstances. On the other hand, with a change of scene on the plaintiff's return to the UK, and a resumption of treatment in a new environment away from former stressors, this could be seen as a positive indication that the plaintiff may be in a position, to some degree, to take up some form of alternative employment in the future. Doubts remain as to the likely hours or duration of any revived residual employment.

299 Given the chronicity of the plaintiff's psychological problems as described in the medical and allied evidence, I consider that there is no justification for applying a higher than conventional discount of 15 per cent for vicissitudes in this case.

300 Accordingly, the projection of a loss of $750 per week net at 5 per cent over 15 years to the plaintiff's age of 67 (x 555) less 15 per cent for vicissitudes yields the amount of $353,812.

301 I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $353,812.

Future loss of superannuation

302 The appropriate assessment percentage for identifying the amount of future loss of superannuation is 14.06 per cent of the amount assessed for future loss of earning capacity. I therefore assess the plaintiff's damages for future loss of superannuation in the amount of $49,710.

Fox -v- Wood

303 The parties agreed that the total amount of tax the plaintiff has paid on her weekly workers' compensation payments is $13,851. I therefore assess the plaintiff's damages for the Fox v Wood component of her damages in the amount of $13,851.

Summary of damages assessment

304 My assessment of the plaintiff's damages is summarised as follows:

(a) Past economic loss	$285,000
(b) Past loss of superannuation	$31,350
(c) Future economic loss	$353,812
(d) Future loss of superannuation	$49,710
(e) Fox v Wood	$13,851
Total	$733,723

Disposition

305 As the plaintiff has succeeded in the litigation she is entitled to a verdict and judgment in her favour against the defendant in the sum of $733,723.

Costs

306 The plaintiff is entitled to have her costs of the proceedings paid by the defendant on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

307 I make the following orders:

(1) Verdict and judgment for the plaintiff in the sum of $733,723;

(2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(3) The exhibits may be returned;

(4) Liberty to apply on 7 days notice if further orders are required.

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Decision last updated: 04 November 2014