Ms Robertson (the Plaintiff) was an endorsed enrolled Nurse (EEN) at the Gold Coast Hospital who alleged that her colleagues - most of whom were registered nurses (RNs) - had badgered, bullied and mobbed her at work during 2011 and 2012. The Plaintiff claimed that this caused her a psychiatric injury and consequent loss of her career in 2013. The Hospital was concerned with the Plaintiff’s competence as an EEN and the performance management action taken by her supervisors – which Ms Robertson perceived as bullying – related to this enquiry.
The courts acknowledge that some recognisable psychiatric illnesses may be triggered by stress. However, just because an employee has been exposed to stressful situations in the workplace does not make it reasonably foreseeable that the employee will suffer psychiatric injury.
In pure psychiatric injury claims, the key issue in determining whether a duty of care to avoid a psychiatric injury arose is whether, in all the circumstances, the risk of the particular employee sustaining a recognisable psychiatric injury was reasonably foreseeable by the employer, in the sense that the risk was not far-fetched or fanciful.
The mere fact that an employee has suffered a psychiatric injury, even as a consequence of their employment, does not demonstrate that the employer had a duty to the employee to avoid causing such an injury, nor that, even if a duty arose in the particular circumstance of the case, the injury was caused because the employer breached that duty. Evidence that often plays an important role in cases such as this is what notice the Employer had that the employee in question was at risk of suffering a psychiatric injury.
The difficulties faced by Defendants as to assessing whether a particular person may be at risk of suffering from a psychological injury include:
The key to addressing breach of duty in the typical pure psychiatric injury cases has largely turned on evidence of:
However, the principal issues that arose in this case were slightly different to that of the pure psychiatric injury cases that have been before the Court in the past. They were:
The Court paid close regard to each of the alleged incidents (of which there were 19 separate incidents plus a further six other relevant events) which arose during this period and any signs of which the employer was, or ought to have been, aware of an impending psychiatric injury.
Throughout the nine day Trial, the Defendant called numerous witnesses, all of whom gave evidence as to their concerns regarding the Plaintiff’s competence to perform the tasks required of her as an EEN. In particular, they had genuine concern for patient safety as a result of the Plaintiff’s inability to display the necessary degrees of competence to administer drugs and otherwise attend to patient care needs at a reasonable standard.
Barlow QC DCJ thought the Plaintiff had a tendency to describe the events that occurred over the course of her employment in a way that shone a poor light on the other participants in the events, or failed to accept that she might have made errors - or have inadequate knowledge - herself. The Plaintiff also failed to acknowledge that there may have been good reasons for the Hospital and its staff to have genuine concerns about her abilities.
On each of the alleged occasions, the Defendant’s responsible officers (whose knowledge was imputed to the Hospital) were Ms Naylor (as the Nurse Unit Manager) and Mr McPhee (as the clinical nurse educator). When considering each of the circumstances in which the Plaintiff alleged she was bullied, badgered or mobbed, it was material that she did not complain to any relevant persons at the Hospital of the perceived behaviour she experienced from her colleagues at work until 19 December 2011, when she was placed onto a performance improvement plan by Ms Naylor in response to reported errors made administering medication and her overall competency as an EEN.
The Court found that the Employer was, in respect of all of the occasions as alleged by the Plaintiff, entitled to review and investigate the Plaintiff’s practice and decide for itself whether she was able competently and consistently to carry out the duties of her employment. That is what it was doing at all times from 19 December 2011.
His Honour concluded that the Hospital did not owe the Plaintiff a duty of care to avoid injury by this conduct of the investigation. Even if there was a foreseeable risk that those actions might cause the Plaintiff psychiatric injury, the Hospital had no duty of care to take reasonable steps to avoid such an injury if it were to arise from its reasonable steps in investigating, assessing, educating and, where it considered it necessary, admonishing her where she did not perform her duties properly.
Barlow QC DCJ found:
Consequently, the Plaintiff failed to prove her claim and His Honour gave judgement for the Defendants. If His Honour had given judgement for the Plaintiff, he would have awarded her damages of $416,540.22.
Article written by Tony Rosenthal (Partner) and Anna-Britt Kjellgren (Associate).
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