Kott Gunning acted for Riverton in the recent District Court
decision of Wilson v Riverton Rossmoyne Bowling and Recreation
Club Inc  WADC 54. This matter involved a claim for
damages for psychiatric injury caused by workplace bullying.
The plaintiff worker, Ms Wilson, had been employed as a casual
barmaid for Riverton since approximately March 2007. As the name
suggests, Riverton carried on business as a bowling club and
recreation centre, which included a liquor licence.
Ms Wilson alleged that on 11 December 2008, she was verbally
abused and exposed to threatening behaviour from a specific
customer, which caused her to suffer a psychiatric condition. She
also alleged that for about 12 months prior to that incident, her
employment had imposed undue stress and anxiety on her. Ms Wilson
further alleged that despite these alleged events being brought to
Riverton management's attention, the behaviour continued and
Riverton failed to take disciplinary action against the offensive
customer, or suspend abusive customers from service generally.
Ms Wilson claimed Riverton owed her a duty of care in tort and
was in breach of its statutory duty pursuant to the
Occupational Safety and Health Act 1984. She also claimed
Riverton breached its contractual obligations, failed to maintain a
safe system of work and did not take all reasonable care for her
Riverton denied Ms Wilson's allegations in their entirety
and pleaded that appropriate action was taken and at no time had
they breached any of their duties.
Significant factual and witness evidence was led by both
parties. The medical evidence was quite brief in comparison.
Psychiatrist, Dr Ng prepared a special evaluation in August 2010
in which he estimated Ms Wilson's level of Whole Person
Impairment (WPI) at 17%. After viewing surveillance footage in
December 2012, Dr Ng still considered Ms Wilson's condition had
not reached maximum medical improvement , however, reduced his
estimated her future WPI to 8%. He commented that her current WPI
was greater than 8%.
Two days later, Dr Ng estimated Ms Wilson's current WPI at
9% before, making a final assessment on 28 April 2014 of 19%.
After reviewing the surveillance footage and considering Ms
Wilson's level of activity and mental status, Dr Terace
assessed Ms Wilson's WPI at 0%. He believed Ms Wilson either
does not suffer any psychological trauma as a result of her
employment or if she does, it is of mild severity.
Both Dr Ng and Dr Terace considered that upon considering the
surveillance footage, the veracity of Ms Wilson's prior
presentation was in question.
His Honour did not find Ms Wilson's to be a truthful witness
and had exaggerated the majority of her allegations. This no doubt
greatly affected the outcome of the matter. He did not accept her
evidence as to the period over which she said she was abused or the
nature and frequency of the abuse which she said took place and
When Ms Wilson's evidence was in conflict with evidence of
witnesses called by Ms Wilson, his Honour preferred that of the
His Honour dismissed the claim in its entirety finding:
Ms Wilson had not sustained mental harm as a result of conduct
for which Riverton was responsible;
Ms Wilson's her injury was not foreseeable;
Riverton did not breach its duty of care towards Ms Wilson;
Riverton was not in breach of any of the express or implied
terms of the employment contract.
In regards to WPI, his Honour preferred the medical evidence of
Dr Terace and was not satisfied Ms Wilson had reached the required
Given his Honour's credibility findings concerning Ms
Wilson, it was impossible for him to make any provisional
assessment of damages.
The decision clarifies the principles to be applied in cases
involving the fairly common scenario, where a claimant is upset by
the nature of the sanction imposed by an employer.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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