Eaton v TriCare (Country) Pty Ltd [2015] QDC 173 

(note overturned on appeal: Eaton v TriCare (Country) Pty Ltd [2016] QCA 139)

The plaintiff alleged being overworked and harassed at work. Whilst Devereaux SC DCJ accepted a number of the plaintiff’s allegations, including that she worked at times in excess of her requirements, His Honour also accepted many of the defendant’s explanations or versions of events. His Honour found in some instances the behaviour of Harrison, the supervisor was unreasonable, but in other instances it was simply a heated or angry exchanged, which in some instances flowed from the failings of the plaintiff. His Honour made the point, it is difficult to assess such interactions and that each person’s recollection may well have been as they perceived it.

Thus, despite a number of findings that the plaintiff was overworked and distressed by the conduct of her supervisor, the plaintiff’s claim failed because His Honour Devereaux SC DCJ found the plaintiff could not establish foreseeability. This finding was fatal as to the content of the duty owed and any breach and hence necessarily causation. His Honour found the plaintiff suffered a recognised psychiatric condition, which despite the variances in reporting and pre-existing history was founded on the work related conduct. Nevertheless, His Honour held it was not foreseeable to the employer that the plaintiff would suffer such a condition. In large part this flowed from the plaintiff’s failure to report the conduct to her superiors.

The plaintiff’s claim failed to articulate apart from harassment what tort the employer was vicariously liable for. His Honour found the conduct of the plaintiff’s supervisor was not of the mind of the employer and so distinguished Nationwide News P/L v Naidu and Anor [2007] NSWCA 377. His Honour found the employer had in place systems to address harassment. The mere expression of some distress or emotional reaction of the plaintiff was not sufficient. His Honour noted that whilst reporting might not be fatal in all cases, in this instance the plaintiff had ease of access to do so and was familiar with what was required.

His Honour recited the seminal decisions of Tame v The State of New South Wales [2002] HCA 35(2001) 211 CLR 317 and Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44 and noted the plaintiff did not claim negligence against Harrison, but that her employer was vicariously liable for her conduct. Fatal to the plaintiff’s claim was that His Honour was not satisfied that the plaintiff had proved the risk of the plaintiff suffering a recognisable psychiatric illness was reasonable foreseeable. The conduct of Harrison did not go far enough and the plaintiff never reported it.

Devereaux SC DCJ

The duty of care

[131] The plaintiff’s claim is in negligence and breach of the employment contract.[164] In Tame v The State of New South Wales [2002] HCA 35(2001) 211 CLR 317, Gleeson CJ said that, in the law of negligence, carelessness involves:

‘a failure to protect the interests of someone with whose interests a defendant ought to be concerned. A definition of the ambit of a person’s proper concern for others is necessary for a decision about whether a defendant’s conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages? [8]

A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed.

……

It is important that “reasonable foreseeability” should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. [12]’

[132] An employer owes an employee a duty to take all reasonable steps to provide a safe system of work. That includes a duty to take reasonable steps to avoid a risk of psychiatric injury to an employee. It is a threshold issue – whether the relevant duty was engaged by the reasonable foreseeability of psychiatric injury to the plaintiff.

[133] The High Court, in Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44, considered the content of an employer’s duty of care in a case where it is claimed the duty obliged the employer to avoid a risk of psychiatric injury to an employee by altering the work expected of the employee. That is not precisely the present case but it is still useful to note the opinion of McHugh Gummow Hayne and Heydon JJ that in such a case the duty owed requires consideration of the obligations arising under the contract of employment, equity and statute. At [33] their Honours 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.’

[134] Their Honours were not attracted by the proposition that “all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.” (222 CLR 44 at 57 [34]) but went on to say, at [35]:

‘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[165], 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 given by the employee concerned.’

[135] In their written submissions, counsel for both the plaintiff and defendant addressed the question whether the ‘person of normal fortitude’ test applied in determining the content of the duty of care owed. In Tame, Gleeson CJ said:

‘Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey[166] as “an objective criterion of duty”. The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to “a normal standard of susceptibility” as one of a number of “general guidelines” in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a “normal” person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though “normal fortitude” cannot be regarded as a separate and definitive test of liability.’

[136] Gummow and Kirby JJ, at [197], explained that the concept that a plaintiff has no action unless he or she be an individual of normal fortitude was said to derive from the speech of Lord Wright in Bourhill v Young [1942] UKHL 5[1943] AC 92. Gummow and Kirby JJ went on to say:

‘…. it is made plain in that passage that the attention to the notional person of “normal fortitude” is the application of a hypothetical standard that assists the assessment of the reasonable foreseeability of harm, not an independent pre-condition or bar to recovery. [197]

…….. it does not follow that it is a pre-condition to recovery in any action for negligently inflicted psychiatric harm that the plaintiff be a person of “normal” emotional or psychological fortitude or, if peculiarly susceptible, that the defendant know or ought to have known of that susceptibility. [199]

….. because the criterion is an objective one, what is postulated is a general (and contemporary) standard of susceptibility. It is in that context that references in judgments of this Court to hypothetical “ordinary” or “reasonable” standards of susceptibility to psychiatric harm are to be understood. [200]

However, the concept of “normal fortitude” should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. [201]’

[137] Callinan J. said, in Koehlor v Cerebos at [55] that foreseeability ‘is not to be assessed by reference to a notional person of normal fortitude, but on the basis of the impression created by, and the other overt or foreseeable sensitivities of, the actual person affected.’

[138] The plaintiff’s case is not that she was vulnerable or in a special position that the defendant should have been aware of.

[139] The plaintiff was not a manager or team leader. But she occupied a position between other staff and Harrison and between families of patients and Harrison. She had been a personal carer – and was obviously very experienced and admired in that role. She became the go-to person for staff, perhaps when they should have gone to management. Harrison said, ‘we talked about boundaries around her role and about recognising that it’s difficult to work with your friends sometimes but she’s not a PC any more.’ (5-23.10)

[140] In comparison with, say, the clinical manager, or a team leader such as Prendergast, the position of the plaintiff carried with it the risk of vulnerability on her part.

[141] On the other hand, the plaintiff presented as very well experienced and qualified for the position. The plaintiff’s evidence, tendered to prove her substantial capacity as a reasonable and reliable worker, and to contradict a defence that she has long suffered a generalised anxiety disorder, or at least to reduce the relevance of any such disorder, also provides the defendant with the argument that the plaintiff’s agreement to undertake her role, and the representations of fitness for the role express and implied in her application material, undermine the contention that it ought to have appreciated that the performance of her duties posed a risk to her psychiatric health.

[142] There was some evidence to the effect that the plaintiff visibly deteriorated over the term of Harrison’s management. This evidence was divided along party lines.

i) The plaintiff said that in September 2009 around the time she reported complaints from other staff to Harrison, Harrison’s response upset her so much she started to cry. She told Harrison she felt intimidated and felt bad when being spoken to like that. Harrison just said ‘I’ll speak how I like, just get over it.’[167]

ii) The plaintiff said Harrison’s conduct with respect to the journey claim also made her cry. At that time she felt destroyed.[168]

iii) On the occasion of the kitchen supervisor incident, the plaintiff said that Harrison abused her so much that she broke down and asked whether she should resign.[169]

iv) On 11 March 2010, the phone call from the doctor, the plaintiff said she broke down after Harrison spoke to her. The plaintiff required the day off and went in to her doctor.[170]

v) Prendergast said that the plaintiff seemed a lot more stressed after Harrison became the facility manager.[171]

vi) Thompson said that when she was a personal carer the plaintiff was happy-go-lucky and very outgoing. After she became secretary it was harder to see her. When asked whether he noticed a difference after Harrison had become the facility manager Thompson said that the plaintiff was a very sad and depressed lady.[172]

vii) Lorraine Friedrich was a long-time friend of the plaintiff. Over the years they had mainly kept in touch by telephone. She gave evidence in detail of the plaintiff’s disposition over the years. She had shared many of the plaintiff’s experiences over the years. For example, she spoke of the plaintiff in 2002 having to deal with her son’s drug addiction. Friedrich said the plaintiff was a strong woman and coped with all of those things. However, at the beginning of 2010, the plaintiff was reporting to Friedrich how stressful her work was. The plaintiff sounded depressed. She was not her former bright and bubbly self.[173]

viii) Carberry said that after the arrival of Harrison, the plaintiff, as time went on, became withdrawn. He saw her crying.[174]

ix) I have already referred to the evidence of Morris. She saw the plaintiff upset after an incident she witnessed between Harrison and plaintiff.[175]

x) The plaintiff’s husband, Dennis Eaton, gave evidence. Relevantly, he gave evidence that at one stage, probably in 2009, problems were starting to arise with the plaintiff. For the first time she commented that she did not want to go to work. He did not know what was wrong with her but suspected a mental problem of some sort. By the time she resigned in 2010 ‘she was a complete mess’.[176]

xi) Harrison gave evidence about the plaintiff’s emotional state, including that she was emotional and teary. Harrison’s evidence was that the emotional state was evenly laid out across the whole period of her involvement with the plaintiff.[177]On one occasion, Harrison saw the plaintiff emotional and teary after a long phone call with a friend of a resident.[178]Harrison denied that the plaintiff told her that the way she spoke made the plaintiff feel bad.[179]When asked whether the plaintiff was a cheerful person, Harrison said ‘when she wasn’t upset. It seemed to vary quite a lot.’[180]Harrison seemed to have an appreciation that the plaintiff tended to become emotionally upset. As to the meeting of 12 March 2010, she said ‘this directive’s letter was around putting some boundaries around Robyn’s work habits so that she didn’t find herself in such a distressed state.’[181]

xii) Belanszky gave evidence that he did not see the plaintiff cry or in an unhappy state.[182]

xiii) Saltmer did not think the plaintiff was overly emotional.[183]

xiv) Reynolds commented that the plaintiff could ‘stress over things pretty easily and become flustered’. Reynolds continued that the plaintiff could become frustrated quite easily. She said the plaintiff was always quite fiery, ‘she wasn’t one of the quieter ones of us.’[184]

xv) Swann noticed the plaintiff had a nervous disposition. She noticed the plaintiff had a shake of her hands.[185]She said that the nervousness that she saw seemed the same for the whole time that she was there.[186]Towards the end of the plaintiff’s employment, she was telling Swann that she felt more stressed about her work.[187]

[143] On balance, this evidence supports a finding that the plaintiff’s apparent psychological state deteriorated during the period she was under the management of Harrison.

[144] There seems to be no dispute that the plaintiff, certainly between April 2009 and March 2010, complained about her workload.[188]

[145] The plaintiff gave evidence that she told Harrison the latter’s conduct was affecting her feelings. The plaintiff said that when Harrison first spoke to her in a harsh and nasty way she said to her, ‘Jane you’re making me feel really bad the way you’re speaking to me. I feel bad’. Harrison simply told her she would speak however she liked and told the plaintiff to get over herself.[189] This might have been as early as May 2009. I have already mentioned the occasion in about September 2009 when the plaintiff told Harrison she was feeling intimidated by Harrison’s conduct. Harrison denied these complaints were made to her and whereas I favour the view that the plaintiff made the complaints to her, it is likely Harrison did not hear them as the plaintiff meant them to be heard, or that Harrison simply has forgotten. Harrison gave evidence of the plaintiff that ‘asking if she was in trouble was a fairly routine part of her behaviour in the workplace from the get-go.’[190] Earlier during cross-examination, Harrison was asked, ‘so you’re saying that there were times in the course of her employment that she raised with you this question of whether she was in trouble or not?’ Harrison replied, ‘she would – when we talked about an issue that, you know, I might not have agreed with how she handled it or vice versa, then out of the blue she would say am I in trouble or do you want me to resign?’[191]

[146] As to whether complaints were made to others in the defendant’s management structure, the plaintiff said during cross-examination she had spoken to several persons. She named some but said she could not remember.[192] She said she used the expression, ‘I was getting a very hard time.’[193] The more the cross-examiner asked, the more information came out. The plaintiff said she spoke to Belanszky, Jill Patience and O’Brien. It was put to her she had not made these claims before. A document produced by the plaintiff’s counsel apparently included the allegation that the plaintiff spoke to O’Brien about Harrison’s treatment of her on 18 March 2010, that is, after her resignation.[194] The result seems to have been that no written complaint was made while the plaintiff was employed by the defendant. I refer to these matters only for completeness because, as Ms Anderson writes in the plaintiff’s written submissions, the plaintiff does not claim to have reported Harrison’s behaviour to her superiors. The plaintiff’s evidence was she believed a complaint had been made (the anonymous letter) and that any complaint was futile.[195] Similarly, Mr Mellick, in his written submissions, writes the plaintiff has not pleaded nor set out to prove that the defendant was on notice in respect of the conduct of Harrison. In this regard, he distinguishes the present case from Wolters v The University of the Sunshine Coast [2012] QSC 298.[196]

[147] The defendant’s duty, as pleaded in paragraph three of the amended statement of claim, was to exercise reasonable care for the plaintiff’s health and safety in her employment by not unnecessarily exposing her to risk of psychiatric injury. The plaintiff relies on the conduct of Harrison and its effect on her in combination with the workload issues to prove a breach of the duty. The plaintiff argues that looking forward, it was reasonably foreseeable the plaintiff would suffer a recognisable psychiatric injury as a result of the pleaded events.

[148] As set out above, I have made limited findings in favour of the plaintiff with respect to her workload and the conduct of Harrison. These matters are relevant to the assessment of the content of any duty owed by the defendant.

[149] I am not satisfied the plaintiff has proved that, in the circumstances that I have found, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable.

[150] It is insufficient for the plaintiff to rely on any notice that Harrison might have had of the plaintiff’s distress. Harrison was not, even on the plaintiff’s case, the mind of the defendant. I am not saying that I am satisfied Harrison personally appreciated or ought to have in the circumstances appreciated the reasonably foreseeable risk of the plaintiff sustaining a recognisable psychiatric illness. As I have recently noted, the plaintiff does not claim to have reported Harrison’s conduct to Harrison’s superiors. There may well be a case where that is not fatal to a plaintiff’s claim. But the plaintiff was in Hervey Bay with easy contact to Brisbane. The evidence shows the regularity with which staff from head office attended Point Vernon and the availability by email the plaintiff had with senior officers such as O’Brien and Clonan.

[151] The circumstances relevant to the assessment of the foreseeability of the reasonable risk of serious psychiatric injury also include the plaintiff’s presentation of her qualifications and experience for the position, the requirements of the position, the putting in place of an apparently well qualified manager, and the plaintiff’s complaints to anyone who would listen about the workload issues. In my view, the claim must fail because the relevant duty was not engaged by the reasonable foreseeability of psychiatric injury to the plaintiff.

Breach of duty

As to breach of duty His Honour referred to Spigelman CJ said, in Nationwide News P/L v Naidu and Anor [2007] NSWCA 377; (2007) Aust Torts Reports 81-928 and Hegerty v Queensland Ambulance Service [2007] QCA 366 per Keane JA said at [47] as to the guiding principles.

The plaintiff relied on the vicarious liability of the defendant for Harrison’s conduct or in the alternative the failure of the defendant to undertake matters set out in the Risk Management Code of Practice 2007. The plaintiff failed because there was no connection between whatever the alleged wrongdoing of Harrison was in negligence and the negligence of the defendant. It was not a case of an intentional tort by Harrison or Harrison being the ‘mind of the employer’. Otherwise, the plaintiff failed because of foreseeability – the employer was not required to do more than what they did.

[155] ‘An employer is vicariously liable for a tort or other actionable wrong committed by an employee in the course of employment’: Beazley JA in Nationwide News P/L v Naidu and Anor [2007] NSWCA 377(2007) Aust Torts Reports 81-928 at [240] referring to Deatons Proprietary Limited v Flew [1949] HCA 60(1949) 79 CLR 370 at 379; State of New South Wales v Lepore (2003) 212 CLR 511. The plaintiff has not pleaded what tort Harrison committed that the defendant is vicariously liable for. It is not pleaded, nor do I understand the plaintiff’s argument to be, that Harrison was negligent. The plaintiff alleges, in paragraphs 77-80 of the amended statement of claim (Pleaded Facts (xxv – xxvii) above) that Harrison deliberately conducted herself in a way that would amount to workplace harassment. The claim against the defendant is brought in negligence. Harrison’s intentional wrongdoing is relevant only if the plaintiff draws a clear connection between that conduct and the negligence of the defendant.

[156] The plaintiff, in written submissions, refers to Nationwide News P/L v Naidu as an example of a company held liable for the actions of its officer even when the actions breached the company’s policies provided the acts were performed in the scope of employment. That is not controversial[197], but in my view, Nationwide News P/L v Naidu does not support the plaintiff’s vicarious liability pleading and argument. In that case, the trial judge held Nationwide News “liable in negligence” but the reasoning was directed to a finding of vicarious liability for an intentional tort.[198]

[157] Mr Mellick argues that the first five particulars of negligence are irrelevant because the standards of codes are not the standards of the common law. Ms Anderson replies that a determination of what is reasonable care is one of fact. The question is whether the defendant has failed to take reasonable care to avoid foreseeable injury.[199] So, a failure to implement codes shows a lack of reasonableness. In Leighton Contractors P/L v Fox [2009] HCA 35(2009) 240 CLR 1 at [49], the whole court said,

‘While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed … into a duty of care at common law.’

[158] The particulars reflect the plaintiff’s case that the defendant breached its duty of care by failing to appropriately respond to her workload and by failing to identify and address Harrison’s conduct. As to workload, the submission is that no risk analysis was ever undertaken to determine whether the plaintiff’s workload issues posed a risk of psychiatric injury. As to Harrison’s conduct, the plaintiff does not claim to have told the defendant about Harrison’s conduct but says the defendant did not have in place a system to monitor and review Harrison. The inference the plaintiff seeks to have drawn is that ‘had the defendant put in place a system to appropriately monitor the behaviour of Harrison they would have been aware of the breaches of the workplace harassment code’[200] and its own policies[201].

[159] I repeat that I am not satisfied the plaintiff has demonstrated the reasonable foreseeability of a serious psychiatric illness in the plaintiff’s workload and Harrison’s conduct such as to engage the duty of care the defendant owed its employees. The plaintiff must fail on the question of breach on the same ground. But leaving that aside, a number of matters raised in the evidence tend against a finding of breach of duty.

[160] I have set out evidence as to overt emotional behaviour of the plaintiff. Whereas these might have been signs suggesting an adverse effect on the plaintiff’s mind, Harrison’s evidence of the plaintiff’s habit of asking whether she was in trouble and should resign rang true. What is required is foreseeability of a recognised psychiatric illness. This evidence does not, in my opinion, reach the level of possibility of psychiatric illness which would require the employer to intervene.

[161] Again, Spigelman CJ in Nationwide News P/L v Naidu, at [60]:

‘An employer… [is] not, in my opinion, required to have in place systems of inquiry and/or response, to manifestations of mental disturbance in order to determine whether or not the disturbance is work related and, if so, to remedy the situation.’

[162] The defendant demonstrated systems in place to guard against a breach of duty. These included the matters set out in the staff handbook[202] and the Workplace Harassment[203] Policy. The plaintiff had, as I have noted above, ease of communication with managers in Brisbane, and an apparently good relationship with them.

[163] It was not suggested care was not taken in the appointment of Harrison. She was apparently well qualified. She was on probation for a period and, although she could not remember precisely, she vaguely recalled, at counsel’s suggestion, that she was reviewed at four to six weeks and at 12 to 14 weeks.[204] The evidence suggested there were regular visits to the facility by Brisbane based managers. It is not clear from the plaintiff’s submissions what system should have been put in place to monitor Harrison’s conduct which would have revealed behaviour in breach of the workplace harassment code or the employer’s duty to the plaintiff.

[164] It is tolerably clear Harrison put in place several measures to help the plaintiff rein in her workload and to allow her to work in a more disciplined way with fewer interruptions. I have mentioned the various memos Harrison promulgated – they are not in evidence but Ms Anderson pointed Harrison to an email in which she referred to them[205] and I do not understand the plaintiff to have denied these actions by Harrison. Harrison and the plaintiff met to discuss the plaintiff’s workload and list her duties. I have also commented that some of the measures tried, such as the sharing of the roster preparation load, did not alleviate the plaintiff’s load. And some of the overload was, as I have found, due to the plaintiff’s inability to, for example, spend less time with prospective clients and families. It might not be that she once took three hours to guide people through the facility, but regularly taking one hour or more was inconsistent with the experiences of others.[206] Organisationally, a single administration assistant supported all but one of the other facilities the defendant operated.

[165] I am not satisfied that, had the defendant’s duty of care to the plaintiff been engaged by the risk of reasonably foreseeable psychiatric injury, the defendant has been shown to be in breach.

Causation and the medical evidence

His Honour considered the expert opinions of Dr Bythe and Professor Whiteford, together with some of the inconsistencies in reporting, but found that it was not reasonable or realistic for experts “to offer an infinitely calibrated set of opinions furnished according to the possible combinations of accepted facts” and in any event because of foreseeability and breach, it was not determinative.

[166] The plaintiff claims that the combination of her workload during the time Harrison was manager and Harrison’s conduct towards her caused personal injury in the form of a psychiatric injury.[207]Because of my findings with respect to duty of care and breach of duty it is unnecessary to spend much time on the question of causation. Having said that, I am satisfied on the balance of probabilities that the combination of the two stressors brought about psychiatric illness.

[167] With respect to causation, Mr Mellick makes a detailed attack on plaintiff’s case because of the variations in the histories each psychiatrist received, in writing from the plaintiff’s solicitors[208] and orally from the plaintiff and the statement of claim and a statutory declaration made in February 2012. Mr Mellick referred to Midwest Radio Ltd v Arnold [1999] QCA 20. In that case, there was a very real possibility that the medical witness whose opinion was accepted based his opinions partly on matters that were rejected by the trial judge in making his findings, or on evidence which the judge did not in the end accept. McPherson and Williams JJA held the plaintiff failed at trial to establish her cause of action. The proposition is that the plaintiff must fail for the same reason.

[168] I have made findings that certain alleged incidents did not occur (the anonymous complaint letter), or did not occur as the plaintiff described them or occurred but without the sting the plaintiff claims she suffered from the incident. Where the doctor’s opinion is based in part of such an incident, is the opinion of no value?

[169] Ultimately, I feel comfortable drawing, from the psychiatric opinion, certain conclusions while taking into account the variations in base facts. This is because of the nature of the findings I have made inconsistent with the plaintiff’s account to the doctors. So, for example, although I am not satisfied Harrison said, ‘well, nobody likes you anyway’ that need not reduce the effect on the plaintiff of the incident during which she alleged Harrison said those words. It is the effect on the plaintiff that the psychiatrists have the expertise to evaluate.

[170] If this approach seems contrary to the reasoning in Arnold, it may be defensible on the basis that it is a practical approach. It does not seem realistic or reasonable in a case such as the present, where many particulars of conduct over a long period of time are relied on for their cumulative effect, for the expert to offer an infinitely calibrated set of opinions furnished according to the possible combinations of accepted facts. The alternative would be for the trial judge to make findings of fact before the opinion evidence is called. And that does not seem workable.

[171] In any case, given my findings on duty of care and breach, for the moment at least, this section of these reasons is not determinative of the outcome.

[183] Whether this difference of opinion matters depends on the issue in question. It might have been thought relevant to the question of foreseeability. As is plain from my reasons given, I found it unnecessary to turn to the psychiatric evidence in order to decide that issue. Nor does the difference of opinion seem to affect the question of causation. Dr Byth would say the plaintiff’s present condition is wholly attributable to the circumstances of employment of which she complains. Professor Whiteford would say that the plaintiff suffers from major depression which is likely to have been triggered by the workplace experience of the plaintiff while she also suffers from a pre-existing generalised anxiety disorder.

[184] One view on the plaintiff’s medical history is that, if the plaintiff has not suffered a generalised anxiety disorder, she has nonetheless several times during her life, and for sometimes lengthy periods, been prescribed antidepressant medication. It is reasonable to infer, menopausal symptoms aside, that she has suffered depression before. It may be well be inferred that she was always likely to suffer it again in the future. In the end, I see no practical consequences for the purposes of this litigation of the doctors’ differing opinions.

[185] The remaining question is whether the facts upon which the opinions were given are so substantially different from the findings I have made in favour of the plaintiff that the doctors’ opinions do not support a conclusion that the plaintiff’s experience in the workplace under the management of Harrison caused her present condition. There are some facts referred to by Dr Whiteford in his first report, dated 5 November 2010, which I have not found. For example, I do not accept the plaintiff was telephoned 15 to 20 times a day by the facility while she was on sick leave for her gall bladder operation because the assertion is not supported by either Harrison or Saltmer. I have nonetheless found the plaintiff was working under excess demands. In the letters sent to Dr Byth, there are certain facts I have not found, for example that Harrison said to the plaintiff, ‘Nobody likes you.’ I notice that in Exhibit 30 the plaintiff presents the view she still presented at trial with respect to giving a reference to a potential employer of an ex-employee. The particular episode as described in the letter does not include violent or intimidating language on the part of Harrison. That is, I think it reasonable to proceed on the basis that Dr Byth formed his opinion without particular reference to that incident.

[186] With the benefit of the opinions of the doctors, filtered as I have discussed above, I am satisfied that it is safe to conclude the plaintiff’s consistently excessive workload and the conduct of Harrison as I have found them to be caused the plaintiff’s current psychiatric condition. In reaching this conclusion it take into account all of the evidence, particularly including the evidence of the course of the plaintiff’s psychological state and its deterioration during the period of Harrison’s management of the facility.

 

David Cormack – Brisbane Barrister & Mediator

NB: overturned on appeal – Eaton v TriCare (Country) [2016] QCA 139

 

 

Related Posts

Recent Comments

    Categories