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Upheld on appeal: no warning of psychiatric injury means no breach of duty

Maureen Robertson (the Plaintiff) was an endorsed enrolled nurse working at the Gold Coast Hospital. She alleged she suffered a psychiatric injury over a period of time in the course of her employment, and was "badgered, bullied and mobbed" by her colleagues at work.

The Plaintiff sued her employer for damages.

The Plaintiff's case was heard by the District Court of Queensland. The trial judge dismissed the claim on the basis she was not bullied, badgered or mobbed as alleged. Rather, the actions of the employer were simply a reasonable investigation into the Plaintiff's competency. It then flowed there had been no foreseeable psychiatric injury, and no breach of any duty of care.

The Plaintiff appealed against the trial judge's decision.

The Court of Appeal found:

  • It was open to the trial judge to find, based on the facts as His Honour accepted, that the Plaintiff was not badgered, bullied and/or mobbed. In fact, during the course of the appeal, no argument was advanced to demonstrate any error in the finding of fact underlying that conclusion.
  • During the claimed period of injury, the Plaintiff did not "exhibit or articulate signs to suggest she was so materially distressed or affected that psychiatric injury to her was reasonably foreseeable…".

During the trial, the Plaintiff alleged her "signs" were (a) her demonstrated lack of confidence in administering medications, (b) the employer's knowledge she felt unfairly targeted by other staff, and (c) telling her superiors she felt lonely because she did not feel supported by other nursing staff. The Plaintiff also said she would have been showing "physical signs" of nervousness at various meetings with her superiors.

The trial judge found that, although it would have been clear the Plaintiff was feeling unhappy, stressed, and lacking confidence, that knowledge would have only given rise to "a need to provide education in medication that would increase her confidence…". It would not have been significant enough to give rise to a foreseeable risk of injury.

The Court of Appeal found no error with the trial judge's conclusions that no "signs" of foreseeable psychiatric injury were exhibited by the Plaintiff.

  • The way in which the employer investigated the Plaintiff's competency was reasonable and not so "unusual or extreme" as to suggest to the employer a psychiatric injury was foreseeable. The competency issues were raised in ordinary ways with the relevant supervisors, who utilised the employer's usual performance management processes.
  • The degree of probability of psychiatric injury was not of such a degree that a reasonable employer would have taken precautions. The Court found that, by the Plaintiff merely alleging a high number of workplace events, it will not make those events cumulatively significant if, as in this case, the events simply amounted to unremarkable workplace incidents. In these circumstances, a reasonable employer would not have been obliged to take precautions against the risk of psychiatric injury.
  • The Plaintiff failed to prove her psychiatric injury was caused by any breach of duty. The Court accepted the Plaintiff's psychiatric injury was simply caused by the stresses she experienced at work, but those stressors were not caused by any breach of duty.

The Court therefore dismissed the Plaintiff's appeal.

The Court turned to the principles set out in the High Court decision of Koehler v Cerebros (Australia) Ltd (2005) 222 CLR 44, which is the leading authority with respect to cases of pure psychiatric injury suffered in the workplace. The relevant principle is:

"The duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable… That invites attention to the nature and extent of the work being done by the particular employee, and the signs given by the employee concerned."

The trial decision on this case, and the decision on appeal, demonstrates the circumstances in which a Court will (or will not) find an employer liable for psychiatric injury. In particular, a Court will pay close attention to whether the affected employee exhibits signs of possible psychiatric decompensation, which go beyond that caused by mere stresses in the workplace. As set out in Koehler, an "employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job."

Article written by Cameron Seymour (Partner) and Rachel Coleman (Senior Associate).

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."