By Kerrie Jackson
This bullying and harassment case was heard before Judge Koppenol over 12 days between February and June 2017. The much anticipated judgment was handed down on 3 November 2017. The Plaintiff was a store manager at a Lorna Jane store. She claimed she was bullied and harassed by an area manager which included shaming about her weight, and that she also suffered a physical injury in the course of lifting some boxes of stock.
A considerable amount of time at trial was spent exploring the claims the Plaintiff had made to various psychiatrists about her history and symptomology, and on social media.
In a lengthy judgment, His Honour Judge Koppenol rejected every aspect of the Plaintiff’s claims.
In terms of liability, His Honour found that the Plaintiff failed to prove her claim on the balance of probabilities. Lorna Jane was not “on notice” and directly liable for any alleged bullying and harassment suffered by the Plaintiff at the hands of her former manager. He was satisfied that Lorna Jane’s human resources staff acted reasonably.
In terms of credit, he found that the Plaintiff was a “most unreliable witness” (paragraph 40) and her claims about her employment history were “misleading and exaggerated” (paragraph 48). In His Honour’s opinion, the Plaintiff was trying to portray herself as a successful business woman and performer prior to the injuries when those claims were false. Further her evidence about her social activities was false. Far from being socially isolated and avoidant, the Plaintiff was active and engaged in the community.
Dealing with vicarious liability for the conduct of the manager, the Court did not accept the Plaintiff’s evidence about alleged misconduct of the Plaintiff’s former manager towards her. In particular, the Court was not satisfied that the Plaintiff’s former manager referred to her as “cheap” or used the term “generator” in a nasty way towards her. His Honour found that Lorna Jane was not vicariously liable for the conduct of the former manager in making comments on her personal Facebook page, and in any event was satisfied that those comments were not specifically related to the Plaintiff. He found that the Plaintiff was not bullied about her weight.
Even if the Plaintiff had been successful in establishing breach, the Court found the Plaintiff would have failed to establish causation, because the Plaintiff failed to establish that had Lorna Jane warned and appropriately counselled the Plaintiff’s manager about behaviour towards the Plaintiff that the behaviour would not have continued and she would not have sustained an injury.
His Honour found that the risk of psychiatric injury in this case was not foreseeable. Lorna Jane had no reason to suspect the Plaintiff was at risk of psychiatric injury or was not a person of normal fortitude. In any event, removing the stressors by removing the Plaintiff’s manager (by warning and counselling the manager) would not have protected Ms Robinson because it would have required only some trivial event to have occurred to cause her to suffer the same symptoms.
The Court also rejected the claim for physical injury. His Honour was not satisfied that the Plaintiff suffered an injury on the date she alleged or that she was performing heavy lifting in the manner she described.
In terms of quantum, the Court was not satisfied that the Plaintiff was intensely distressed upon presentation to her treating psychologist. The Court found that the only reasonable conclusion was that the Plaintiff was at best exaggerating her symptoms when she saw her treating psychologist and at worst untruthful in her self-reporting. In totality, the medical evidence suggested the Plaintiff was exaggerating her symptoms or being untruthful in her self-reporting to the assessing doctors, never had a work induced adjustment disorder and suffered from pre-existing mixed personality disorder which is unrelated to her work at Lorna Jane.
If she had been successful in the action, His Honour would have made no award for either past or future economic loss. His Honour found that the Plaintiff failed to prove that any award of damages for either the psychiatric injuries or the physical injury claim ought to have been made.
The case is a salutary reminder of the potential impact of social media particularly in psychiatric cases, and the need for careful case preparation.
We are very proud to have had the opportunity to assist Lorna Jane with this outstanding result.