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Robinson v State of Queensland [2017] QSC 165

5 mins  17.08.2017

Finding of breach of duty to take reasonable care to avoid exposing an employee to a foreseeable risk of psychiatric injury

Mrs Robinson (the plaintiff) sued the State of Queensland (the defendant) for negligence. The plaintiff was the District Director of Nursing (DDON) for the Cape York Health Service (CYHS). It was alleged that the plaintiff was subjected to repeated managerial mistreatment by the service's District Chief Executive Officer (CEO), which caused psychiatric injury to the plaintiff with consequent loss of her career. The plaintiff alleged that the defendant owed her a non-delegable duty to take reasonable care to avoid exposing her to a foreseeable risk of psychiatric injury in her employment and was vicariously liable for the acts and omissions of Ms Turner.

The plaintiff complained of a prolonged series of events occurring between March 2010 and 17 January 2011. During this period of time, the plaintiff alleged she was subjected to management action which harassed, mistreated, devalued and undermined her in her employment. The conduct occurred in the context of interpersonal issues between the plaintiff, the Director of Nursing at Weipa Hospital, Ms Holford and Ms Holmes, a Nurse Unit Manager under Ms Holford's supervision. An organisational review report (report), carried out in late 2009 recommended that Ms Holmes be removed from work. Ms Holmes response to this report labelled the plaintiff as the cause of a number of factors influencing her behaviour. Ms Holmes was removed from her role as a result of the report, because it was considered she posed a risk to staff identified in the report. She was moved to a different unit within CYHS

In early 2010, the CEO was appointed. At this time, the CEO was made aware that due to the events involving Ms Holmes and Ms Holford, the plaintiff was emotionally at risk. The plaintiff was assured by the CEO that she had nothing to be concerned about and that the CEO would ensure nothing untoward would happen to her. Upon her arrival, the CEO was made aware of the outcome of the report and the disciplinary actions outlined therein.

In early 2010 Ms Holmes submitted eight workplace incident forms (WIFs) making allegations of past bullying and harassment against the plaintiff. Not only was the plaintiff not made aware of these WIFs for a number of months, she also had to go through significant efforts to obtain copies of them. The CEO failed to carry out investigations of the allegations, which she assured the plaintiff she would do. Although the CEO acknowledged the WIFs were vexatious and knew of the ongoing affect they were having on the plaintiff, she failed to take any action to manage the situation.

Further, on a number of occasions at work events, the CEO would belittle and undermine the plaintiff in front of co-workers she had authority over. This conduct escalated until in late 2010 and early 2011, when the CEO would make decisions impacting upon the plaintiff's teams without consulting her and would actively exclude the plaintiff from decision making and team meetings. This included a decision to reinstate Ms Holmes as a Nurse Unit Manager although this would mean placing her within the team the plaintiff was responsible for.

By November 2010, the working relationship between the plaintiff and the CEO had broken down to the extent that the plaintiff avoided all unscheduled interactions with her. The plaintiff went on leave in late 2010 in order to manage her declining mental health. Dr O'Kane, the plaintiff's psychiatrist certified the plaintiff was unable to return to work on 17 January 2011. A bid to have the plaintiff return to work in 2013 failed as the defendant refused to facilitate a return to work in any location other than Weipa. It was determined that a return to work in the same working environment would have a severely detrimental impact on the plaintiff's illness.

Findings

The Court noted that where it is alleged a breach of the employer's duty of care has caused a psychiatric injury it is not a precondition that a person of 'normal fortitude' would have suffered that injury. The focus for the Court is upon the fortitude of the particular employee and the signs given by the employee to the employer. The Court noted that the plaintiff consistently informed the CEO of the psychological toll the events were having on her and her fragile mental state. The Court also held it was reasonable to hold the knowledge of the CEO to sufficiently represent the knowledge of the corporation employing the plaintiff.

The Court found in most cases preferred the testimony of the plaintiff. The Court found that the defendant had breached its duty to take reasonable care to avoid psychiatric injury by failing to take timely and determinative action on the vexatious complaints. Although other staff had involvement in that failure, the Court held that it was largely due to the omissions of the CEO, conduct for which the defendant would be vicariously liable. Further, the defendant failed to take reasonable care to avoid psychiatric injury by failing to prevent the CEO's course of managerial mistreatment.

Three psychiatrists provided expert opinion to the Court that workplace stressors were the cause of the plaintiff's psychiatric injury. Further expert opinion supported that the plaintiff would be unable to return to work at Weipa, as this would cause a severe deterioration in her condition, due to the co-workers who caused her psychiatric injury still being employed there. The defendant had indicated no intention to facilitate her return to work in another health district.

The Court determined that the defendant had breached its duty to the plaintiff and in doing so had caused her psychiatric injury. The defendant was ordered to pay damages of $1,468,991.11 and the plaintiff's costs.
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