Plaintiff reliability and accuracy affected adversely by psychiatric condition

Kemp v Gold Coast Hospital and Health Service [2004] QSC 259

The matter was heard in the Supreme Court of Queensland at Brisbane over seven days in April/May 2023 before Justice Sullivan.

Justin Sullivan dismissed the Plaintiff’s claim.

Background

The Plaintiff was a 56 old sonographer/radiographer.

He alleged he sustained a psychological injury as a result of inappropriate conduct by a number of staff members between April 2018 and August 2018 arising from a complaint he made to the Office of the Health Ombudsman. The Plaintiff alleged he way bullied and harassed due to the manner in which the complaint was handled by the employer and staff members treating him after they found out he had made the complaint against them.

Decision

Justice Sullivan found:

• It was not part of the Plaintiff’s case that the employer knew or ought to have known at any relevant time that the Plaintiff had a susceptibility to psychiatric injury or was exhibiting a particular vulnerability to psychiatric injuries;
• The Plaintiff was affected adversely in his reliability and accuracy as a witness by his psychiatric condition;
• The employer’s duty is not to avoid risk but to act reasonably in response to it;
• Whilst every case must turn on its own facts, it has been observed previously that an employer will generally not owe a duty of care to eliminate gossip in a workplace, or to provide a happy workplace;
• Evidence supported a position that there had been a decline in the Plaintiff’s psychiatric condition before 11 April 2018. That was important not least because it was only conduct from 11 April 2018 which was pleaded as underlying the causes of action by which the psychiatric injury was sued for;
• Pleaded allegations raised against two of the coworkers were not made out by the Plaintiff;
• The evidence of the Plaintiff against a manager did not come up to proof;
• The Plaintiff’s lack of reliability with regards to his evidence not coming close to making out some of the allegations sounded against the Plaintiff’s general reliability including in respect of his allegations against a supervisor;
• The Plaintiff failed to reduce any contemporaneous evidence;
• The pleaded allegations of inappropriate conduct made by the Plaintiff against another employee in respect of an alleged confrontation were not made out;
• There was no direct evidence of the staff members knowing as a fact that the Plaintiff was the complainant. There was a level of suspicion that the Plaintiff may have been the complainant, but no one ever told them it was the Plaintiff;
• The employer did maintain the confidentiality of the Plaintiff’s identity as the complainant. It did not disclose to anybody else in the Department, the identity of the Plaintiff as the complainant in the Office of the Health Ombudsman complaint;
• The extent that staff had a suspicion or belief that the Plaintiff had been the complainant, on the balance of probability, were based on their own individually formed suspicions as to who may have made the complaint due to the Plaintiff having made statements of similar issues to those in the Office of the Health Ombudsman complaint and had generally made negative statements prior to 11 April 2018;
• Dr Chalk expressed the view that he did not consider the Plaintiff had been honest in his presentation at the initial interview, particularly his denial of any past history of difficulties. Dr Chalk was also of the opinion “…. the Plaintiff’s misperceptions concerning his co-workers could well be caused by his agitated untreated depressive illness. These misperceptions probably mean he is more unwell then has been previously appreciated and that has been the case for some time”;
• Dr De Leacy conceded “given the severity of the Plaintiff’s psychiatric symptoms, there was the potential for him to have been far more sensitive to what coworkers were saying and what they may have thought were innocuous statements. Further, the Plaintiff’s perception concerning what they were saying or doing may have been adversely affected by his psychiatric symptoms”;
• The Plaintiff had a longstanding depressive illness well prior to 2018. In the period leading up to 11 April 2018, the Plaintiff was not symptomatic to the degree he became after 2018. In 2018, the Plaintiff was more psychiatrically vulnerable then he had conceded;
• The Plaintiff’s untreated longstanding depressive illness provided a significant explanation for his erroneous beliefs that people were talking about him, spreading untrue rumours about him, treating him unfairly in various ways, holding him back and excluding and victimising him in various ways;
• The Plaintiff’s misperceptions concerning his coworkers were likely caused by his agitated untreated depressive illness and those misconceptions on the balance of probability meant he was more unwell prior to 2018 then had been previously appreciated;
• At sometime after 11 April 2018, there was a further psychiatric decompensation of the Plaintiff. However, the further decompensation was not caused by any inappropriate conduct on the part of the employer, as no such inappropriate conduct as pleaded had occurred;
• On balance, the decompensation was also contributed to by the Plaintiff forming an erroneous belief that there had been a disclosure of his identity as the complainant;
• The fact that the Office of the Health Ombudsman complaint had been referred to the employer to deal with in house had not been a contributing cause to the Plaintiff’s decomposition. Even if it had been a contributing cause, the fact such a referral was made was not the fault of the employer;
• It was reasonably foreseeable that someone in the Plaintiff’s position would be vulnerable to risk of a recognised psychiatric illness as opposed to mere psychological disturbance if his identity was disclosed;
• Whilst it would be reasonably foreseeable that someone who had wanted anonymity in making the complaint would have been angry, upset, or stressed by the disclosure (including a concern about the possibility of some future adverse consequence), it would be far fetched or fanciful to say that it would be reasonably foreseeable that a recognised psychiatric injury may result solely from a person from the employer making such disclosure to others in the Department;
• Even if he was incorrect on whether such a existed, there was no breach of that duty as at no stage did the employer disclose the identity of the Plaintiff as the complainant to anybody else within the Department;
• No question of causation therefore arose, as there could be no breach of the duty as there had been no disclosure of the Plaintiff’s identity as the complainant;
• The employer owed no duty with the scope which imposed obligation to prevent its employees from subjectively wandering, suspecting, or musing on things such as who may have made the complaint against them;
• He did not accept there was an obligation to quell any gossip or rumour that the Plaintiff was the complainant and an obligation to provide a happy workplace. Even if that was incorrect, there was no breach of the duty;
• The employer through its management team had no knowledge that such gossip was occurring. The Plaintiff never informed the employer’s management team that such gossip was occurring. There was no failure to take action to quell the gossip (assuming such a duty existed) as the employer had no knowledge of it;
• There was no inappropriate conduct engaged in failing to provide a happy workplace. As with the gossip, there was no evidence that management was aware of this type of conduct. The Plaintiff did not complain to management. There was no failure to take action to provide a happy workplace (assuming such a duty existed, as the employer had no knowledge of the workplace being unhappy in the respects complained of);
• The owed a duty to take reasonable care to devise, implement and supervise a proper and adequate procedure for dealing with complaints of victimisation, retribution, bullying or harassment of an employee by other employees. The risk of an employee sustaining a recognisable psychiatric illness would be reasonably foreseeable and not far-fetched or fanciful, if such procedures were not provided. However, there was no breach of this duty as the employer had a complaint system in the form of the HR Policy and that system was a proper and adequate one designed to deal with conduct within the workplace, which would have included the conduct identified;
• The employer had put in place clear procedures and processes whereby inappropriate conduct in the workplace could be reported to management so that it could be investigated. The HR Policy reflected this. The Plaintiff was well aware of his right to make a complaint about what he saw as inappropriate conduct. The process then allowed for an investigation to take place and action to be taken in accordance with an ultimate determination;
• The procedures meant that appropriate steps had been taken against the risk of psychiatric injury of employees from inappropriate conduct. Therefore, there was no breach of the duty;
• Even if this was incorrect, given his finding the pleaded inappropriate conduct did not occur, any breach could not have been causative of the loss. That is even if there were some inadequate systems in place to deal with complaints of victimisation, retribution, bullying or harassment, none of that type of inappropriate conduct occurred;
• The causes of the psychiatric injury would have occurred even if the procedures and processes had been adequate and engaged. That is, the Plaintiff would still have been affected by his disappointment in the outcome of the Office of the Health Ombudsman complaint and would have always formed the erroneous perception that there had been disclosure of his identity as the complainant by the employer;
• As there was no inappropriate conduct by any staff member, the issue of vicarious liability did not arise and that part of the claim could therefore not be made out and failed