WCRA: double whammy – failure to investigate & bullying + harassment = $1.4m

Robinson v State of Queensland [2017] QSC 165

The plaintiff claimed for psychiatric harm caused by her employer while working as the District Director of Nursing for the Cape York Health Service.

The claim had two aspects. The first and more unique claim, was for the failure of management and Ms Turner, the Chief Executive Officer (CEO), to take timely and determinative action in relation to complaints made by a colleague (Ms Holmes) against the plaintiff via workplace incident forms (WIFs) and the plaintiff’s complaints against Ms Holmes. The second aspect was more common and centred on the CEO’s conduct towards the plaintiff which was alleged to be humiliating, belittling, isolating, undermining and bullying.

The claim was built on facts that were detailed and involved numerous instances to substantiate both claims. In the plaintiff’s favour and unlike many of these sorts of claims, the plaintiff did not have a history of psychological or psychiatric issues and was before the appointment of Ms Turner well regarded. Bolstering the plaintiff’s claim was her credibility and the lack of credibility of Ms Turner. Notably, Henry J took the unusual step of saying as much after Ms Turner’s evidence:

[292] Ms Turner had such difficulty in credibly dealing with objectively established evidence and her evidence seemed to go so badly for the defendant that I took the unusual step of making a considered comment to that effect to the parties immediately after her evidence, at a stage when the trial was due to adjourn part heard for some weeks.[526] The trial continued. None of the subsequent evidence was such as to salvage the reliability Ms Turner’s testimony.

Nevertheless, the trial proceeded, and unsurprisingly his Honour found against the defendant on the basis of their vicarious liability for Ms Turner’s conduct. His Honour found that the higher up the person responsible for the offending conduct, the more likely that it will be found to be the “mind” of the defendant:

[10] The attribution of vicarious liability to a corporate entity for the wrongful conduct of its employee, requires that there be a sufficiently close connection between that conduct and the type of conduct the employee was engaged to perform, to conclude it was conduct carried out in the course of that employment.[6] The greater the authority in which an employer clothes an employee, the greater the risk of harm flowing from conduct abusing that authority and the easier it is to infer the conduct was done in the course of employment.[7] The authority entrusted to Ms Turner as CEO and the fact that all of her conduct alleged in paragraph 10 was purportedly carried out in her performance of that role compels the inference the defendant was vicariously responsible for it. While the nature of the alleged conduct was not conceded, it was not seriously suggested it was conduct beyond the course of Ms Turner’s employment and thus conduct the defendant would not be liable for.

In relation to the first aspect of the claim, his Honour found that the WIFs lodged by Ms Holmes were, despite the evidence of Ms Turner, known to the CEO at an early point in time. It was also evident that the WIFs were stale (relating to historical allegations) and trivial. The historical allegations were about incidents alleged before the CEO commenced and matters which the plaintiff had raised with the former CEO and on ‘handing over’ to Ms Turner. In this context, it was accepted that the level of anxiety associated with these complaints was known to Ms Turner and despite the defendant’s argument its cause was the conduct of Ms Holmes; his Honour found it was the failure to act, as opposed to the substance of the complaints:

[128] As already discussed Ms Turner already knew of Mrs Robinson’s peculiar level of concern regarding the fact of Ms Holmes pursuit of complaints and the delay in them being provided to her. Ms Turner conceded in evidence it was no surprise Ms Robinson was distressed by the WIF’s content.[221] This correspondence made it plain Mrs Robinson’s level of already significant concern was continuing to develop, not abating. The “signs given by the employee”, of which the High Court spoke in Koehler v Cerebos (Aust) Ltd,[222] were becoming increasingly manifest.

[129] The day before that email, Sunday 18 July 2010, Mrs Robinson was supposed to have been going to Brisbane but could go no further than Cairns. On that Sunday she spoke from Cairns by mobile telephone to Helen Reed, sounding upset.[223] She told Ms Reed she could not go on as her professional career was in tatters.[224] In cross-examination Mrs Robinson accepted she had said that was “primarily” because of the allegations made by Ms Holmes, which had left her crying and distressed.[225] Mrs Robinson could not recall whether in the same communication with Ms Reed she had mentioned Ms Turner’s management actions.[226]

[130] The point of such cross-examination was to support the defendant’s theme at trial that it was Ms Holmes’ targeting of Mrs Robinson which was the essential cause of her psychiatric injury. The difficulty for the defendant is that it was within the power of Ms Turner, and through her the defendant, to take timely determinative action in response to the complaints of Ms Holmes against Mrs Robinson. Given the sworn evidence of Ms Turner, Ms Reed and Ms Perriman that the complaints were vexatious it is obvious that determinative action would have favoured Mrs Robinson, quelling her distress and leaving her confident the defendant would indeed protect her against such targeting. Put differently, that outcome is likely what would have occurred but for the failure to take timely determinative action.

The defendant’s policies for dealing with complaints provided a mechanism for resolving frivolous and vexatious complaints, which were not addressed by the defendant adequately.

His Honour found:

[192] In light of what was known about Mrs Robinson’s heightening emotional state the individual circumstances of this case meant the defendant had a duty to take timely and determinative action in response to the Holmes WIFs, to guard against the risk of psychiatric injury to Mrs Robinson. By determinative action I mean some authoritative form of action culminating in a timely conclusion about the complaints and a timely announcement of the action to arise from that conclusion.

[193] The defendant’s breach of its duty of care to Mrs Robinson to take timely and determinative action in response to the Holmes WIFs was manifest in the failure to provide copies of the WIFs to Mrs Robinson in a timely fashion once she was told they would be provided. It was manifest in the failure to investigate the Holmes WIFs in a timely fashion or at all. Subsets of the latter failure were a failure to investigate Mrs Robinson’s WIF, which would necessarily have required investigation of the Holmes WIFs, and, though not expressly alleged, a failure to investigate or indeed articulate any material reply to Mrs Robinson’s response to the complaints in Ms Holmes’ WIFs, a response the department had specifically called for.

[194] The relevant duty of care was not per se confined to a duty to investigate. It was to take timely and determinative action. Ms Turner acknowledged it was within her power to, in effect, summarily determine the complaints against Mrs Robinson in the Holmes WIFs required no investigation, because they were vexatious, and to in turn announce that determination. Such a determination would have met the aforementioned duty, but there was no such summary determination. Equally it was within her power to ensure a timely investigation of those complaints. But there was no investigation of them, let alone a timely investigation or an investigation leading to a determination.

[195] The risk of psychiatric injury to Mrs Robinson was reasonably foreseeable by reason of the signs progressively exhibited by Mrs Robinson of a high and increasing degree of emotional concern and distress about Ms Holmes’ targeting of complaints against her in the WIFs. The risk of such injury was not insignificant, particularly bearing in mind those signs fell for consideration in the light of Mrs Robinson’s previously expressed concerns about Ms Holmes and what the PsyCare report had advised the defendant about Ms Holmes. The risk of injury obviously emanated in part from the fact Ms Holmes targeted Mrs Robinson in complaints to the defendant. But it was the response of the defendant to the receipt of those complaints which would be most material to the probability of psychiatric injury. A reasonable employer would have realised its response to such complaints bore heavily upon the probability of such injury occurring and that such an injury can have serious consequences. Moreover, the burden of taking the precaution of timely and determinative action on Ms Holmes complaints to avoid the risk of injury was modest. Realistically, the taking of such elementary action would likely be the standard response of any competent manager, even if unconcerned by a risk of psychiatric injury.

[196] The defendant breached its duty to take reasonable care to avoid psychiatric injury by failing to take timely and determinative action on Ms Holmes’ complaints. While other staff had some involvement in that failure, its substantial cause was the conduct, largely by omission, of Ms Turner, conduct for which the defendant would be vicariously liable.

The failure to act in relation to the complaints poisoned the relationship between the plaintiff and Ms Turner. It was accepted that there were many incidents where Ms Turner acted against the plaintiff, and his Honour summarised the outcome of the evidence as follows:

[299] In the course of the above analysis I have found there were repeated instances of managerial mistreatment of Mrs Robinson by Ms Turner, namely:

(a) Ms Turner’s unjustified blaming and ill-tempered, humiliatingly loud and public dressing down of Mrs Robinson at the June teambuilding workshop.

(b) Ms Turner’s loud and aggressive belittling of Mrs Robinson’s concerns as sinister and all in her head at their meeting of 29 September 2010.

(c) Ms Turner’s isolation of Mrs Robinson by flippantly dismissing and never meeting her request for information about Ms Holford’s concerns, in the wake of excluding Mrs Robinson from the meeting with Ms Holford of 5 October 2010.

(d) Ms Turner’s isolation and undermining of Mrs Robinson at the meeting of 15 November 2010 by her public reversal of Mrs Robinson’s allocation of offices designed to avoid contact between Mrs Robinson and Ms Holmes.

(e) Ms Turner’s humiliation and undermining of Mrs Robinson at the meeting of 15 November 2010 by not according Mrs Robinson the same opportunity for private discussion with her outside, which she accorded Ms Holmes.

(f) Ms Turner’s isolation of Mrs Robinson by not consulting her and circumventing her in communicating on 16 November 2010 with staff Mrs Robinson line managed in respect of the operational assignment of Ms Holmes.

(g) Ms Turner’s false accusation at the meeting of 6 December 2010 that Mrs Robinson had said Ms Turner would have to apply for her own job and the humiliation and undermining inherent in making that accusation publicly and declining Mrs Robinson’s request to speak privately rather than at the meeting about the topic.

(h) Ms Turner’s undermining and isolation of Mrs Robinson by deciding to remove risk management from Mrs Robinson’s area of responsibility and informing staff of that decision on 9 December 2010 without first consulting or advising Mrs Robinson.

(i) Ms Turner’s isolating of Mrs Robinson by the decision of 7 January 2011 to restore Ms Holmes to her substantive position while Ms Holmes’ complaints in her WIFs against Mrs Robinson remained unresolved.

(j) Ms Turner’s humiliation and isolation of Mrs Robinson and showing contemptuous disregard of Mrs Robinson and the responsibilities of her position, in making and announcing the decision of 7 January 2011 to restore Ms Holmes to her substantive position, without first consulting or advising Mrs Robinson about it.

[300] Ms Turner’s unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of Mrs Robinson constitutes an obvious course of behaviour which I describe in summary in these reasons as a course of managerial mistreatment.

Unsurprisingly, his Honour found in favour of the plaintiff for the second aspect as well:

[304] As to whether Ms Turner’s course of managerial mistreatment of Mrs Robinson breached the defendant’s duty to take precautions against a risk of psychiatric injury to Mrs Robinson, the risk was reasonably foreseeable by reason of the very nature of the type of behaviour involved. In an era when the potentially grave psychological harm done by workplace harassment and bullying is well known, unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of an employee by a CEO was conduct collectively raising a foreseeable and not insignificant risk of psychiatric injury. Moreover, as already noted, during 2010 Mrs Robinson exhibited heightening emotional distress, to Ms Turner’s knowledge, signalling a higher than ordinary risk of psychiatric injury in reaction to Ms Turner’s continuing course of managerial mistreatment of her.

His Honour was satisfied that causation was made out:

[405] But for the breaches there would have occurred timely and determinative action on the Holmes WIFs, quelling any material potential concern about Ms Holmes, and Mrs Robinson would not have been subjected to a course of managerial mistreatment, leaving her in an ordinary emotional state. The necessary conditions of the occurrence of her psychiatric injury would not have existed. But for the breaches Mrs Robinson’s psychiatric injury would not have occurred.

As to quantum, the plaintiff had long ceased work, and there was no realistic probability of the plaintiff returning to work. Drs Likely and Dr Oelrichs assessed the plaintiff under the psychiatric impairment rating scale (“PIRS”) contained in schedule 11 Workers Compensation and Rehabilitation Regulation 2014 (Qld). There was, however, a divergence in the impairment assessment, with Dr Likely assessing 24% and Dr Oelrichs 8%.

The divergence was accounted for by his Honour in the following manner and reconciled:

[439] The divergence between the PIRS rating by each doctor is at first blush surprising given the proximity of their aggregate scores but readily explained by the application of the conversion table in s 7 of the Regulation. Dr Oelrichs’ ratings of 1 for social functioning and 2 for social and recreational activities each appear to be at least a classification level lower than suggested by the evidence. Were they altered respectively from 1 to 2 and 2 to 3 then her mean score would increase to 3 and her aggregate to 17. By reference to the conversion table this would result in a PIRS rating of 19, much closer to Dr Likely’s rating of 24.

His Honour dismissed the evidence of Dr Shaikh:

[442] The opinions of Dr Likely and Dr Oelrichs ought be preferred to those of Dr Shaikh. His supplementary report’s comments are so brief and bereft of foundational analysis as to carry little weight as expert opinion. While he was permitted to enlarge upon his report’s comments in evidence his testimony was unpersuasive.

The plaintiff’s damages were assessed as follows:

General damages

$41,200.00

Past economic loss

$676,335.78

Interest on past economic loss

$41,918.59

Past loss of superannuation

$37,384.14

Special damages

$74,782.94

Interest on special damages

$2,185.10

Future economic loss

$661,276.00

Future loss of superannuation

$66,954.19

Future expenses

$50,793.60

Fox v Wood

$50,700.00

Sub-total:

$1,703,530.34

Less WorkCover refund

$234,539.23

Total Damages Award

$1,468,991.11

 

David Cormack – Brisbane Barrister & Mediator

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