Further to my earlier post and the trial decision of McGill J in the matter Palmer, the majority (Mullins and Dalton JJ) dismissed the appeal on the basis of causation. However, their Honours Mullins and Dalton JJ did find a duty of care was owed on the basis to provide support. In this respect there was a distinction from not owing a duty while undertaking investigations. The duty was also breached, save in respect of Ms Greenhalgh where Dalton J did not find a duty was owed.
In finding a duty was owed their Honours all agreed, save in respect of the appeal of Ms Greenhalgh.
Mullins J agreed with Dalton J that causation was not satisfied because the factual basis relied upon by Dr Bythe was significantly different to the matters proved at trial. Mullins J agreed with Dalton J it was not category of the onus of proof shifting because of the rule in Purkess v Crittenden  HCA 34; (1965) 114 CLR 164.
Employer’s Duty of Care in Relation to Psychiatric Injury
 There is no doubt that in appropriate circumstances an employer will owe a duty of care to take reasonable steps to prevent psychiatric injury to an employee – Koehler v Cerebos (Australia) Ltd. Whether a duty arises in any given case is a question of fact which is to be decided having regard to the foreseeability of risk. In Koehler the High Court said:
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs [of distress, eg] given by the employee concerned.” – p 57 (footnotes omitted).
Duty to Employee in Unhappy Workplace
 In an appropriate case a duty will arise not because the work, workload, or system of work itself is creating problems, but because there is unhappiness within the workplace, not of the employer’s making, but of which the employer is aware. In Nikolich (above) the breach was several months delay in alleviating a workplace situation where an employee, “was continuing to work in a small office managed by a person with whom he had come into serious conflict, whose actions he had found extremely intimidating and threatening and with whom he was no longer on speaking terms.” – . The employee concerned had written a four page letter to the Human Resources Manager outlining in detail why he found his supervisor’s behaviour towards him “threatening and disturbing” and saying that he was suffering “a considerable degree of anxiety, stress and discomfort”. By attaching an article to that letter, the employee put the employer on notice that he feared a serious impact on his health. Nikolich was a breach of contract case, but the discussion in the judgments makes it clear that the reasoning would support a finding that a duty was owed in tort in these circumstances – see  ff.
 In Waters v Commissioner of Police for the Metropolis the House of Lords held that:
“… a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence.”
 The case of State of New South Wales v Mannall is factually very like the present cases. As part of a restructuring within a Government department aimed at eradicating a poor workplace culture, Ms Mannall was promoted out of turn to head the new restructured team. Over a period of two years she was subject to destabilising behaviour on the part of some members of that team who remained loyal to the “old regime”. The employer was aware of this, but offered the plaintiff very little support when she was daily dealing with a nonco-operative and sometimes openly hostile workplace. There were indications that the plaintiff was more than simply upset: she was manifesting signs which should have alerted a reasonable person to her health being at risk. It was held that a duty was owed.
State of New South Wales v Paige
 The trial judge thought that no duty of care arose in the present cases as a consequence of the decision in State of New South Wales v Paige. The facts of that case were that, as principal of a school, Mr Paige dealt with two complaints of sexual misconduct against a teacher. He notified the Education Department of the first of the complaints, but was dissatisfied with the Department’s response. When the second complaint was made, he dealt with the matter himself and did not involve the Department. Then a Royal Commission was conducted into the adequacy of the Education Department’s dealing with such complaints. Faults were found. As a response to the findings of the Royal Commission, the Director-General of the Education Department invited re-submission of past cases of misconduct. Mr Paige resubmitted the first complaint. As a consequence he found himself being investigated for disciplinary offences relating to how he had handled the two complaints.
 Paige’s action against the Department alleged that he had been given assurances that he would be fully protected if he re-submitted the complaints. Secondly, he complained that rather than hear him in person, the Department elected to hear the disciplinary charges it preferred against him on the papers. Lastly, he relied upon some tactical manoeuvring of the Department as to whether or not he had resigned, or been dismissed.
 The Court of Appeal in New South Wales rejected Mr Paige’s claim. Chief Justice Spigelman referred to cases regarding a “safe system of work” and noted that they concerned “the conduct of tasks for which an employee is engaged” – . He said at  that Mr Paige’s complaint was not about the effects of performing his duties of office, but was concerned with matters peripheral to performance of his duties. Further, that his complaints were about the way the Department had investigated and disciplined him and the way in which it had terminated his employment. In particular, so far as the investigation and enquiry were concerned, the trial judge had considered issues of negligence in terms of whether or not Mr Paige had been denied procedural fairness – .
 Spigelman CJ found that there was no duty as alleged by Mr Paige because any duty to take care as to the matters Mr Paige complained of would be inconsistent with other parts of the common law:
“Of particular significance for the present case is the need for coherence in the law, in view of the interaction and interrelation between the proposed duty in tort and the law applicable to termination of employment, that is, the law of contract as modified by statute. In my opinion, the possibility of incoherence in the system of law applicable in this State is such that the proposed duty should not be recognised.” – .
 The common law of contract is that damages are not recoverable for the manner in which an employee is dismissed. As well as incompatibility with the law of contract regarding damages for dismissal, Spigelman CJ thought that imposing a duty such as that contended for by Mr Paige “intrudes into matters within the heartland of judicial review of administrative conduct” – . Compensatory damages are rarely available for administrative error – . Rules as to natural justice are well developed in their own framework, which is not compensatory, but for the purpose of upholding the rule of law, and ensuring effective and accountable decisionmaking processes within the executive arm of government.
 So far as investigation was concerned, the case of Sullivan v Moody had established that investigators exercising statutory powers owed no duty to the person being investigated, for that duty would be inconsistent with a proper and effective discharge of the responsibilities under statute. In investigating Mr Paige, officers of the Department were acting pursuant to statute, and were they to owe a duty to Mr Paige, the subject of their investigation, that would be in tension with, and perhaps in conflict with, their statutory duty – . The incompatibility was not so great as that dealt with in Sullivan v Moody, for in that case the legislation made it plain that the interests of the child were to take precedence. Spigelman CJ did not consider that the incompatibility between the statutory duty to investigate and the proposed duty of care was sufficient alone to determine the issue against Mr Paige – . In combination with the incompatibility with common law however, he came to the view that there could be no duty.
 Both the 2008 and 2009 complaints made against the appellants were formally investigated by the Department. It was contended on appeal that the trial judge had misapplied Paige because the appellants made “no complaint about the investigation itself”. Instead, it was contended that the appellants’ cases were based on a duty to support them as employees while the investigations were carried out.
 All four statements of claim filed below are very similar. In none is there a pleading of the facts relied upon to say that a duty of care arose. Nor is there any pleading as to the scope of the duty of care alleged. Further, it is hard to discern what matters are relied upon as breaches of the duty owed (in an effort to discern by implication what factual matters are relevant to duty). Resort must be had to the way the case was conducted in order to see what was in issue. The approach taken generally at trial was that paragraph 8 was taken to be the pleading of breach and the particulars of breach were those misnumbered paragraphs which followed it; paragraph 5 was regarded as the factual background against which the breaches allegedly occurred. That is, they can be regarded as the premises in which a duty was said to arise – see AB 51-52 and AB 143-144.
 My conclusion is that, for the most part, the investigations (2008 and 2009) conducted by the Department are pleaded as background facts giving rise to a need for the appellants to be provided support in the workplace. There are some particulars of breach which do directly challenge the way the investigation was conducted, eg, failure to provide timely or detailed information about the allegations made. There are pleadings of failure to comply with policies or codes which are indirect allegations of failing to provide natural justice. However, the main pleading of breach – paragraph 9 of the statement of claim in each case – is that in breach of duty the defendant took no steps to provide support or adequate support in circumstances of workplace hostility, and the investigations. It is possible to understand therefore that (for the most part) the duty alleged must have been a duty to take reasonable steps to provide adequate support in those circumstances. This is apparently how the pleading was interpreted – see  ff of the judgment below. In my view then, the appellants’ cases were not like Paige, where the decision to investigate, and the process of investigation, were attacked. Their cases are like Waters, Nikolich and Mannall (above) where, to the knowledge of the employer, the appellants were vulnerable in a hostile workplace while their conduct was being investigated.
 There is an English case which is useful in highlighting the difference between this type of case and Paige: Gogay v Hertfordshire County Council. The plaintiff in that matter worked in a residential home for children who were at risk. A very disturbed child with an IQ of around 50 made statements which, on one interpretation, meant that the plaintiff had sexually abused her. The employer decided that it was necessary to investigate whether or not the plaintiff had sexually abused the child. The plaintiff was suspended on full pay while the investigation took place. She claimed that the suspension caused her to suffer clinical depression. Hale LJ said:
“ From all of this it is clear that there is a distinction to be drawn between the process of investigating whether a child is at risk of significant harm and the process of dealing with a member of staff who may be implicated in that risk. It is a gross over-simplification to conclude that because some form of investigation is taking place in relation to the child the employee must inevitably be suspended. …
 … the issues are different. The child protection issue is whether or not the child is suffering or likely to suffer significant harm and whether or not the local authority should take any action to safeguard or promote that child’s welfare. … The staff issue is whether it is appropriate in the interests either of the child, or the staff member, or the investigation, to separate the staff member from his or her usual place of work. If that is appropriate, as often it will be, the next issue is how this should be done: could a transfer be arranged, or a period of leave, or are disciplinary measures appropriate?”
 In my view, the courts should be slow indeed to hold that a local authority does not have reasonable grounds such as will justify it in making further inquiries in a case such as this. …
 … There is always a separate decision to be taken about the implications for staff. …”
 On the facts in Gogay it was held that there was no reason to have suspended the plaintiff; other workplace solutions could have been found. There is a clear distinction made in Gogay between the duty of an employer to investigate alleged misconduct in the workplace, and a duty to support the employee whose conduct is under investigation. In some circumstances an employer will owe both duties.
 In a section of the judgment below which dealt with the claim made by Ms Palmer, the trial judge said this about the application of Paige:
“ … Counsel for the plaintiffs did not submit that there was negligence simply because complaints had been made and they were being investigated, or because the plaintiff had been removed from her position; rather it was said that the negligence related to a lack of support in the context where this had occurred. But it does not appear to me that this is a meaningful distinction.
 The need for support, if it existed, arose because the complaints were made against the plaintiff, and they were being investigated, which would be productive of anxiety for her, and because her being removed from her position would also be productive of anxiety for her. It follows from the decisions in New South Wales to which I have referred that there can be no duty of care arising in such circumstances directly from the fact of the allegations, the investigation, or the removal from the position. It would in my opinion be inconsistent with that approach to say that, although there was no duty not to cause psychiatric injury by doing those things, there was a duty to provide support in response to those things so as to avoid psychiatric injury. In my opinion, there was no duty to provide special or additional support arising from the fact of the investigation of the complaints, and the removal of the plaintiff from her position.” (my underlining, footnotes omitted).
 In my view, the trial judge failed to understand the type of distinction made in Gogay (above). In fact the distinction made in Gogay was the very distinction which he thought not to be meaningful. Insofar as the appellants did not attack the fact of, or processes of, the investigations, there was no incoherence or inconsistency between any administrative law concepts and the duty of care alleged. Nor was there any inconsistency between the duty of care alleged by the appellants and the employer’s duty (common law in this case) to investigate the complaints made by one group of employees against another group of employees. My conclusion therefore is that the principles in Paige did not stand in the way of a duty of care arising.
Scope of Appellants’ case
 As noted above, to some extent, each of the appellants included some complaints about the fact of, or processes of, the investigations of the 2008 and 2009 complaints. Paige does, in my view, leave some room to argue that this is not fatal to a tort claim. However, the appellants did not seek to explore this territory. A fair understanding of how the trial was conducted is that the appellants accepted that Paige prevented complaints about the fact of, and processes of, the investigations. They characterised their cases as based on the need for support in the workplace because of the investigations and associated hostility and disputation.
 The position was the same on appeal. The notice of appeal contained the following paragraph:
“12. The learned Trial Judge erred in finding that it was inconsistent with the approach in New South Wales v Paige  NSWCA 235; (2002) 60 NSWLR 371 to say that, although there was no duty not to cause psychiatric injury by doing those things, there was a duty to provide support in response to those things so as to avoid psychiatric injury. In my opinion, there was no duty to provide special or additional support arising from the fact of the investigation of the complaints, and the removal of the plaintiff from her position because the Plaintiff did not claim that ‘special’ or ‘additional’ support was required (paras 124 and 179)”
 Looking to how the appeal was conducted in fact, the appellants were concerned not to run a “borderline case” which did explore territory left undecided by Paige. It was contended that the matters of complaint on behalf of the appellants fell well outside the investigation. It does seem that during addresses in the trial, and in the notice of appeal, it was contended that delay in providing information about the allegations made against the appellants was a breach of duty. It was conceded at paragraph 18 of the written outline on appeal that the only point about this run on appeal was a failure to provide support in the context of an investigation – it was not contended that the delay was a breach itself. On appeal there were no complaints advanced on behalf of the appellants concerning the decision of the respondent to investigate the complaints made, or the delays in investigation, or the processes of investigation itself. In dealing with parts of the evidence which were concerned with such matters, I treat it as outside the scope of the case which the appellants ran at trial and on appeal.
Existence of Duty a Question of Fact
 Whether or not a duty of care did arise in any of the four cases with which this Court is concerned is a question of fact to be determined in accordance with the tests outlined by Koehler (above). One of the difficulties both with the statements of claim below, and the judgment below, is that they do not recognise that, in cases of this nature, whether or not there is a duty owed, and what the content of that duty is, can only be determined after a detailed factual enquiry separate from, and preliminary to, an enquiry as to breach.
 The type and amount of work an employee is required to perform is relevant. Generally speaking, where occupations such as the appellants had are concerned, an employer can assume that an employee can perform the work the subject of the contract. Evidence as to what notice the employer had that the employee in question was at risk of suffering psychiatric injury will often play an important role in cases such as these. When employees manifest signs of stress at work, Courts will make a distinction between stress on the one hand and a recognised psychiatric illness on the other – O’Leary v Oolong Aboriginal Corporation Inc. The Courts will not assess an employer’s capacity to detect signs of mental illness as though the employer were a medical specialist – Mannall (above) .
 In Barber v Somerset County Council the House of Lords dealt with a case where the employee suffered significant stress at work due to his workload. It was held in that case that unless the employer “knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job” – p 1091 – and that “To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it. …” – p 1092. In that case, while the employee was suffering significant psychological distress, he did not report it; indeed it could be inferred that he attempted to hide the seriousness of his state of mind from his employer: for example he took leave, rather than sick leave, so that his true condition did not come to the employer’s notice.
 It can be seen from the above statements that, not only can it not be assumed that there will be a duty to take reasonable steps to prevent psychiatric illness in relation to any particular employee, it is not necessarily easy to establish that such a duty does exist. Whether a duty arose in any of the cases before this Court was contentious, as was whether any such duty was breached, and what damage any breach caused. I turn now to the facts of each case relevant to these three issues.
 A real question arises as to whether or not the breaches which were established on the evidence caused the psychiatric injury which was suffered by Ms Hayes. The notice of contention raised the issue of causation at paragraph 4. The appeal was conducted on the basis that causation was in issue.
 After having considered the lack of support provided by the Department, the trial judge made this observation, “On the evidence of Dr Byth, support provided at this point would probably have made a difference.” In fact the evidence from Dr Byth did not support that proposition. When asked a very general question about support, not limited in time in any way, and with no definition or precision as to what was meant by support, the doctor acceded to the proposition that lack of support may have been a matter of some significance in the development of Ms Hayes’ condition, but did so on a particular factual basis which he related at AB 360. This factual basis was not proved.
 The trial judge found that matters referred to by Dr Byth in his evidence caused Ms Hayes’ psychiatric condition –  of the judgment below. He added that, “I also accept his evidence to the effect that it was the combined effect of all those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. The reasoning is the same as with the other plaintiffs.” This is presumably a reference to  of the judgment in which the trial judge said of Ms Palmer’s claim:
“I also accept that the effect of Dr Byth’s evidence is that it was the combined effect of all those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. This is not a case where there were a number of factors acting and the evidence does not permit an inference to be drawn that a relevant factor or factors was at least a cause of the plaintiff’s injury; rather it is a case where there were a number of factors which together produced the plaintiff’s injury, and in those circumstances each of those factors is a cause of the injury unless in the case of a particular factor its contribution can be characterised as de minimis. The analogy is with the dust in Bonnington Castings Ltd v Wardlaw  UKHL 1;  AC 613, 621, rather than with the asbestos fibres in Amaca Pty Ltd v Ellis (2010) 84 ALJR 226.”
 I cannot see that Dr Byth’s evidence was to the effect as described by the trial judge in this paragraph. Matters such as these were never raised with Dr Byth in his oral evidence. There was just no attempt to put a case similar to that which Ms Hayes proved at trial to him as one which did cause, or was capable of causing, the injuries she suffered.
 The difficulty with concluding that the matters in Dr Byth’s evidence caused Ms Hayes’ psychiatric condition is that there was a significant mismatch between the factual basis upon which Dr Byth proceeded, and the facts which were proved at trial. The trial judge did not analyse these discrepancies. There were three distinct problems. First, it is apparent that Ms Hayes gave Dr Byth a factual account of what had occurred in the workplace which was different in significant respects from that which she gave in her evidence. Second, some significant parts of the account that Ms Hayes gave to Dr Byth were complaints about non-justiciable issues relating to the investigation. Third, because the trial judge took the course of analysing the issues of causation and injury before analysing issues of duty and breach and made no specific finding as to when a duty arose, he had regard to matters occurring in 2008 as causing Ms Hayes’ psychiatric condition (as did Dr Byth). All this is apparent from the discussion of causation at  –  of the judgment below. The trial judge’s finding of causation cannot stand. It is necessary to revisit the evidence of Dr Byth in some detail.
Similar reasoning applied in respect of the appellants Palmer & Harris. As noted Dalton J did not find a duty of care was established in respect of Ms Greenhalgh and hence did not consider breach and causation. Mullins J considered if breach were considered it would have been satisfied, but that for the same reasons as relied upon by Dalton J, Ms Greenhalgh would not establish causation.
The President dissented allowing the appeals and found a duty of care, breach and causation.
David Cormack – Brisbane Barrister & Mediator