Lorna Jane’s comprehensive court win

Amy Louise Robinson was employed by activewear company Lorna Jane Pty Ltd between July and December 2012 as manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.

Ms Robinson claimed to have suffered a psychiatric injury from workplace bullying by Megan McCarthy (Lorna Jane’s learning and development manager) and haemorrhoids when lifting and moving heavy boxes of stock during the course of her employment.

Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. The claim for psychiatric injury alleged that Lorna Jane was vicariously liable for the actions of McCarthy and also that an email from a former DFO store employee named Ms Maninnen which alleged ill-treatment of Robinson by McCarthy had put the company ‘on notice’ and that it had subsequently failed to investigate.

Both liability and quantum were in dispute although there was no dispute between the parties concerning the following:

• 1. liability is to be determined in accordance with the civil liability provisions contained in sections 305-305E of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) (Reprint 6A);
• 2. Lorna Jane owed Ms Robinson a duty to take reasonable care for her safety in the workplace; and
• 3. such duty included taking reasonable care to avoid psychiatric injury.

Judge Koppenol dismissed the claim, finding against the plaintiff on liability and quantum.

The claim was dismissed by Judge Koppenol as a result of the following findings:

• 1. That the Maninnen email did not put Lorna Jane ‘on notice’ because that email only expressed opinions and conclusions and did not provide any context which would have enabled Lorna Jane to form their own views based on the email.

• 2. In any event, Lorna Jane’s national sales manager Claire Perrin had taken appropriate action by reporting the email to Lorna Jane’s HR department, attempting to make contact with Maninnen about her email and meeting with Robinson shortly afterwards to see if she had any concerns about her employment.

• 3. Whilst there were extremely different accounts of the meeting between Robinson and Perrin, the evidence of Perrin should be accepted because Perrin was ‘an impressive and credible witness’ whilst Robinson was ‘a most unreliable witness’. Therefore, it was not found that Robinson had raised her concerns at McCarthy’s treatment at that meeting as Robinson alleged.

• 4. Robinson was not an honest witness for the following reasons:

a) Her evidence of her employment history, including having been club general manager at Curves Aspley since 2010 and having worked in London was contradicted by tax records and other material which revealed she earned minimal income from paid employment prior to commencing at Lorna Jane.
b) She had informed a psychiatrist named Dr Garg that “social anxiety prevents her from going out and meeting people, or having people over to her house”, and that she “avoids going to the local shops where she might run into people she knows”, however, her Facebook account told a different story, showing to be socially active.
c) Ms Robinson also told Dr Garg in January 2017 that whenever she saw the Lorna Jane brand, she “starts shaking with anxiety … [which] leads to her getting palpitations, shortness of breath and sweating”. However, photographs shown to the court showed that she was wearing Lorna Jane clothing after her employment had ceased.

• 5. Robinson was not bullied by McCarthy (and hence Lorna Jane were not vicariously liable for any bulling) for the following reasons:

a) It was unlikely that McCarthy had referred to Robinson as ‘cheap’ on the first day of Robinson’s training because Robinson had said that at the time they got along well.

b) Robinson did not provide any examples of when the term ‘generator’ was used in a nasty way and there was no evidence that McCarthy had ever done so.

c) a Facebook post by McCarthy which used the term ‘generator’ did not name Robinson and McCarthy claimed (and the Court accepted) that it was not directed at anyone but was posted in frustration at her job.

d) Robinson’s evidence that McCarthy had made weekly comments about her weight was rejected because there were no other witnesses of such comments and they were not reported to Perrin, the notes Robinson said she made of the comment were never produced and a contemporaneous photograph showed that Robinson was not overweight at the time.e) Ms Robinson’s complaints about McCarthy’s alleged dismissive conduct have not been established on the balance of probabilities.

• 6. The risk of psychiatric injury to Ms Robinson was not reasonably foreseeable because the role of manager inherently involves some stress, employees chose their jobs with employers being entitled to assume employees are able to cope with them, there were no warnings signs of such injury’ and ‘an employer is not expected to be a mind reader’.

• 7. Lorna Jane were not in any event vicariously liable for McCarthy’s Facebook posts because they were personal posts on a personal page and the ‘controlling High Court decisions in this regard’ did not impose vicarious liability on such posts.

• 8. Robinson did not suffer any physical injury to her perianal area as there was no medical evidence that she sought treatment soon after incurring this alleged injury, the records of her medical examinations by Dr O’Connell made no such mention of this injury, and the absence of any corroborative evidence from an employee at the DFO store.

• 9. Due to the above credibility issues, Judge Koppenol was not satisfied that Robinson had suffered any work related mental health condition notwithstanding the fact that she had been accepted for Workcover, and therefore assessed quantum as $nil. Her complains were attributed to a combination of exaggerations and a pre-existing mixed personality disorder.

This was clearly a comprehensive win for Lorna Jane as every single issue in dispute was decided in its favour at trial.

When diligent lawyers investigate the claim thoughly and identify discrepancies between what a Claimant says and the objective evidence, this will inevitably harm a Claimant’s credibility.

This case highlights the importance of a Claimant being honest throughout their claim. Any lie or exaggeration once exposed will damage their credibility and hence their prospects of having their evidence accepted by the Court. Claimants in personal injury claims would be well advised to be scrupulously honest at very step of their claim in order to preserve their credibility.

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