Australia: Cape York Director of Nursing receives $1.46 million award in pure psychological injury claim

Justice Henry of the Queensland Supreme Court in Cairns has found that a course of managerial mistreatment, which commenced in early 2010 and spanned about a year, caused the Cape York District's Director of Nursing to develop a psychiatric injury that led to the loss of her career.

Employers and self-insurers can take lessons from Justice Henry's judgment about the types of managerial behaviour that can result in work-related psychological injuries and the damages implications of an unsuccessful return to work process.

Ms Robinson, the plaintiff, had been involved in the management of tensions between two staff members. One of those staff members then made a series of complaints against her by submitting eight work incident reports. The employer only provided the complaints eight weeks after Ms Robinson had first requested them, and after repeated follow-ups. The CEO also took no steps to respond to, or deal with, the complaints, despite the fact that they were generally considered to be vexatious and could have been summarily dismissed.

During this period, Ms Robinson expressed heightening distress and concern about the existence of the complaints, and the CEO was aware of her concerns. Justice Henry concluded that, in this context, the risk Ms Robinson would suffer a psychiatric injury if no action was taken in response to the complaints was reasonably foreseeable.

Justice Henry indicated that, by not providing a copy of the complaints promptly to Ms Robinson or instigating any sort of investigation into them, the employer failed to take timely and determinative action in response. This amounted to a breach of the employer's duty to take reasonable care to avoid psychiatric injury.

In discussing the background to this first breach, Justice Henry briefly considered an employer's duty to provide complaints to an alleged perpetrator. Although his Honour was unwilling to go so far as to say this duty would arise automatically, his Honour did find in these particular circumstances that the employer had a duty to provide the complaints to Ms Robinson in a timely manner. The particular circumstances included that the CEO had given an undertaking she would provide them, there was knowledge Ms Robinson was concerned generally about the complainant, and the CEO knew that not providing the reports would worsen Ms Robinson's concerned state.

It was found that there was a second breach by the employer in failing to prevent the CEO's course of managerial mistreatment of Ms Robinson, conduct for which the employer was also vicariously liable. There were occasions where the CEO rebuked Ms Robinson or made accusations against her in public meetings. On another occasion, the CEO reversed one of Ms Robinson's managerial decisions in a meeting without privately consulting her beforehand. The CEO, generally, was not consultative about operational decisions that affected Ms Robinson and her staff.

Ultimately Ms Robinson left the workplace and was certified as not fit for work. Despite Ms Robinson initially being motivated to return to work, the employer was unable to facilitate a graduated return to work plan. The employer concluded that the only available option was for Ms Robinson to return to the Cape York district, which was contrary to the recommendations of her treating psychiatrist.

By the end of 2013, almost two years after Ms Robinson left work, her treating psychiatrist reported that she would never be able to return to her previous role.

In terms of damages, Justice Henry awarded approximately $676,000 for past economic loss and $660,000 for future economic loss, as well as about $50,000 for ongoing treatment including counselling, medication and psychiatric consultations. Important factors affecting the final award included that Ms Robinson's net income had been around $100,000 per annum and that, but for the psychiatric injury, the 59-year-old would have continued in paid work until the retirement age of 67, most likely in the same role.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

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