Kemp v Gold Coast Hospital and Health Service [2024] QSC 259

TORTS - NEGLIGENCE - DUTY OF CARE: EXISTENCE - where the plaintiff seeks damages for breach of duty of care by the defendant in contract and in tort- where the plaintiff was an employee of the Gold Coast University Hospital - where the defendant operated the Gold Coast University Hospital - where the plaintiff lodged a complaint with the Office of the Health Ombudsman against other persons employed by the defendant - where the complaint was referred back to the defendant for investigation - where the Office of the Health Ombudsman erroneously disclosed the identity of the plaintiff as the complainant to the defendant - where the plaintiff alleges his identity as the complainant became known within his department - where the plaintiff alleges he suffered a psychiatric injury as a result - whether the defendant owed the plaintiff a relevant duty of care

TORTS - NEGLIGENCE - STANDARD OF CARE - SCOPE OF DUTY AND SUBSEQUENT BREACH - GENERALLY - whether any duty of care included a duty not to cause, permit, or allow, the identity of the plaintiff as the complainant to become common knowledge - whether any duty of care included a duty to take reasonable steps to preclude members of staff from forming suspicions as to the identity of the complainant - whether any duty of care included an obligation to ensure that members of staff do not take offence from their being having been the subject of the complaint - whether any duty of care included an obligation to quell gossip and rumours concerning the identity of the complainant - whether any duty of care included an obligation to implement procedures to ensure the confidentiality and protection of complainants - whether any duty of care included an obligation to ensure that members of staff do not engage in certain conduct

TORTS - NEGLIGENCE - DAMAGE AND CAUSATION - whether it was reasonably foreseeable that the plaintiff would suffer a psychiatric injury - whether the psychiatric injury sustained by the plaintiff was caused by a breach of duty of care by the defendant

Health Ombudsman Act 2013 (Qld), s 92

Workers' Compensation and Rehabilitation Act 2003 (Qld),

s 305B, s 305C, s 305D, s 305E, s 306

Workers' Compensation and Rehabilitation Regulations 2014 (Qld)

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Bersee v State of Victoria [2022] VSCA 231

Eaton v Tricare (Country) Pty Ltd [2016] QCA 139

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18

Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1

Hayes & Ors v State of Queensland [2016] QCA 191

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304

Koehler v Cerebos (Australia) Limited [2005] HCA 15; (2005) 222 CLR 44

New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486

Queensland Corrective Services Commission v Gallagher [1998] QCA 426

Roads and Traffic Authority NSW v Dederer [2007] HCA 42

Robertson v State of Queensland [2021] QCA 92

Sheather v Country Energy [2007] NSWCA 179

Stevens v DP World Melbourne Ltd [2022] VSCA 285

Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Walker v Greenmountain Food Processing Ltd [2020] QSC 329

Wolters v The University of the Sunshine Coast [2012] QSC 298

• [1] The defendant operates a public hospital known as the Gold Coast University Hospital ("the Hospital"). The plaintiff was employed at the Hospital by the defendant as a radiographer and sonographer. The plaintiff's claim in this proceeding was for $1,305,481, but reduced to $1,275,230.74 as a result of agreement on special damages. The causes of action in this proceeding are primarily for negligent breach of the defendant's tortious and contractual duties of care, which are said to have resulted in personal injury to the plaintiff in the form of a psychiatric injury.
• [2] The duties of care were subject to the operation of ss 305B to 305E of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act").
• [3] The events which were said to have caused that psychiatric injury to the plaintiff can be broadly summarised as follows:

(a) alleged inappropriate conduct of a Ms Jennifer Dolkens, who was the acting service director of diagnostic services, said to have occurred at a specific meeting on 22 May 2018 which concerned a complaint that had been made by the plaintiff to the Office of the Health Ombudsman ("OHO");

(b) other more general alleged inappropriate conduct of Ms Dolkens between April 2018 and August 2018 directed to the plaintiff;

(c) alleged inappropriate conduct of a Mr Benjamin Adams, a medical imaging assistant ("MIA"), shortly after 11 April 2018, where there was said to have been a specific confrontation between Mr Adams and the plaintiff arising from the plaintiff having made the complaint to the OHO;

(d) other more general alleged inappropriate conduct of Mr Adams between April 2018 and August 2018 directed to the plaintiff;

(e) other more general alleged inappropriate conduct by an MIA, a Ms Hayley Morgan, between April 2018 and August 2018 directed to the plaintiff;

(f) other more general alleged inappropriate conduct of an MIA, a Ms Amanda Sutherland, between April 2018 and August 2018 directed to the plaintiff; and

(g) other more general alleged inappropriate conduct of a Ms Rebecca Green, who was the plaintiff's line manager, between April 2018 and August 2018 directed to the plaintiff.

• [4] The plaintiff also alleges that the defendant was vicariously liable for the alleged conduct of each of its employees referred to above.
• [5] It is important to note from the outset that it was not part of the plaintiff's case that the defendant 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 injury.
• [6] At the start of this trial, and at its conclusion, both parties made plain that the evidence being given by the plaintiff on the one part, and by the defendant's witnesses on the other part, as they concerned the events underlying the alleged breaches of the duties of care, were mutually inconsistent.
• [7] As with all fact-finding tasks in a trial, it is rarely as black and white as the parties effectively expressed it.
• [8] Nonetheless, in this case on the critical facts underlying the alleged breaches of duty, I have generally found in favour of the defendant. I have also concluded that the alleged breaches of duty in the statement of claim have not been made out and were not causative of psychiatric injury to the plaintiff. I have also concluded that the defendant was not vicariously liable, as I have separately found that the alleged inappropriate conduct did not occur. Accordingly, the claim ought to be dismissed.
• [9] In these reasons, I will:

(a) identify the relevant allegations in the pleadings;

(b) set out legal principles as they pertain to the articulation of the specific duty of care obligation;

(c) deal with background facts, and the psychological state of the plaintiff prior to the events which are pleaded;

(d) make the findings on the seven events referred to in paragraph [3];

(e) express my conclusion on the duty of care, breach of duty and causation, together with the vicarious liability claim; and

(f) make findings on the quantum.

• [10] At this early stage, I should make some initial comment on a particular submission which was urged by counsel for the plaintiff.[1] It was submitted that the manner by which the plaintiff gave his evidence and the distress it caused him to speak of certain things spoke to his sincerity regarding the predicament which he now found himself in. The submission continued that such matters touched upon notions of credibility in the sense that witnesses who exhibit such behaviours tend to be more reliable. The example given for this submission was that the plaintiff had given evidence, with tears, about the losing of his house which he and his partner had purchased as a result of their savings which they had made during their working lives. They now live in rental accommodation.
• [11] I do not accept that submission, either with respect to the plaintiff or any of the other witnesses. Obviously, part of the evidentiary analysis process includes the observation of the demeanour of witnesses, but rarely are cases decided on the observable demeanour of witnesses. Generally, cases will turn upon an analysis of the substance of the totality evidence before the court, including objectively provable facts and reasonable inferences which are to be drawn on the balance of probability.
• [12] The plaintiff was emotional at various times during the giving of his evidence-in-chief and in cross-examination. This included his need to have breaks due to being distressed and his being teary. There was nothing confected about the plaintiff's presentation in this respect. His distress was evidently genuine. He clearly was not well when giving evidence.
• [13] His giving of evidence in this way was to be expected. It is uncontentious on the medical evidence that the plaintiff has suffered and continues to suffer from a Major Depressive Disorder, in circumstances where he has not been willing to be treated with antidepressant medication. Further, the process of giving evidence in court is no doubt stressful under normal circumstances, but is all the more stressful when someone is suffering from such a disorder. However, the fact that the plaintiff was emotional at times as described does not automatically equate with him being a more reliable witness.
• [14] As was recognised by the Victorian Court of Appeal in Stevens v DP World Melbourne Ltd at , the hallmark of cases similar to the present kind is that evidence given by a party with a psychiatric injury may well be affected by their condition. Their Honours observed as follows:

"Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his employment. In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff's evidence, might have been the product of the mental injury that arose in the course of the plaintiff's employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness's evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness's evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff's mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff's evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence." (footnotes omitted)

• [15] I have found in this case that the plaintiff was affected adversely in his reliability and accuracy as a witness by his psychiatric condition. In this regard, I have accepted the evidence of Dr John Chalk and Dr Eric De Leacy on this issue.

• [16] I turn then to how the plaintiff advanced his claim in the pleading.
• [17] The duty of care was pleaded in paragraph [3] of the statement of claim as follows:

"At all material times the defendant owed to the plaintiff a duty of care in tort (as referenced in subparagraph (a) of the definition of duty in section 305 of the Workers' Compensation and Rehabilitation Act 2003 ("WCRA")) and a concurrent and coextensive duty of care under contract (as referenced in subparagraph (b) of the definition of duty in section 305 of the WCRA), including by terms implied into the contract of employment between the plaintiff and the defendant (such implication arising from the relationship of employer and employee), which duties of care were to take reasonable care to avoid foreseeable risks of injury to the plaintiff and which included that the defendant would:

(a) take all reasonable precautions for the safety of the plaintiff whilst he was engaged in carrying out his work;

(b) not expose the plaintiff to a risk of damage or injury, including psychiatric injury, of which the defendant knew or ought to have known;

(c) take reasonable care to ensure that the places where the plaintiff carried out his assigned work were safe;

(d) provide and maintain a safe and proper system of work; and

(e) provide adequate training, instruction and supervision so as not to endanger the plaintiff or create a risk of damage or injury, including psychiatric injury, to the plaintiff whilst he was carrying out his work."

• [18] Paragraphs [4] and [5] pleaded that on 12 December 2017, the plaintiff made a complaint to the OHO by telephone. It was a complaint that related to various aspects of the conduct and practices of MIAs employed by the defendant at the Hospital. MIAs were persons employed by the defendant to assist radiographers and sonographers with their day-to-day work.
• [19] Paragraph [6] then pleaded the plaintiff's request to the OHO in relation to how the complaint to the OHO would be dealt with. It pleaded as follows:

"The plaintiff made the complaint to the OHO on his understanding, and his request, that the OHO would:

(a) raise the substance of the complaint with the defendant for investigation; and

(b) keep his involvement confidential, and not inform the defendant that the complaint came from the plaintiff."

• [20] Relevantly, it can be seen from that part of the pleading that the plaintiff had requested that the substance of the complaint be raised with the defendant for investigation, but his identity as the complainant was not to be disclosed to the defendant.
• [21] Paragraphs [7] and [8] pleaded that, despite the request, the OHO erroneously informed the defendant that the plaintiff had made the complaint. It is uncontroversial in this proceeding that OHO did erroneously disclose that the complainant had made the complaint. It did so when it passed on the complaint to Ms Dolkens. However, no part of the OHO's error is, or can be, advanced against the defendant.
• [22] Paragraph [8] pleaded that subsequently the fact that the plaintiff had made the complaint was alleged to have become known within the larger medical imaging department ("the Department") at the Hospital.
• [23] Paragraph [9] pleaded that the consequence of the knowledge that the plaintiff had made the complaint was that the plaintiff "was then subjected to behaviour from staff within the Department which amounted to victimisation, retribution, bullying, harassment and abuse ("the offending behaviour")," further details of which were then pleaded in the subsequent paragraphs of the statement of claim.
• [24] Paragraph [10] pleaded that on or about 11 April 2018, the plaintiff received an email from Ms Dolkens, advising him that she was in receipt of the complaint, and that she would be dealing with the complaint.
• [25] The pleading then turned to the events which are said to underlie the breaches of the pleaded duty. It is necessary to set them out in some detail as the breaches portion of the case will significantly turn on which, if any, of the specific events are made out by the plaintiff.
• [26] The first event is that pleaded in paragraph [11], which deals with Mr Adams's alleged specific inappropriate interaction with the plaintiff a few days after 11 April 2018. That allegation is as follows:

"On a date within a few days after 11 April 2018, the plaintiff was confronted by a medical imaging assistant, Ben Adams, and:

(a) the plaintiff was working in the orthopaedic radiological examination rooms at the Hospital, and believes that Mr Adams came from a different part of the Hospital specifically to confront the plaintiff;

(b) Mr Adams stood close to the plaintiff and used a raised voice in a manner which was abusive, intimidating and threatening to the plaintiff; and

(c) during the confrontation Mr Adams used the following words, or words to similar effect of:

(i) "Jamie, you made a complaint about me to the Health Ombudsman";

(iii) "Who the fuck do you think you are telling me how to do my job";

(v) "Jenny said she is going to support the MIAs anyway, so you can go fuck yourself"."

• [27] The second event is that pleaded in paragraph [12], which deals with Ms Dolkens's alleged specific interaction with the plaintiff on or about 22 May 2018, where the two met to discuss the OHO complaint. That allegation is as follows:

"On or about 22 May 2018, Ms Dolkens directed the plaintiff to attend a meeting with her to discuss the complaint, and in the course of that meeting, Ms Dolkens:

(a) adopted a manner towards the plaintiff which was aggressive, dismissive, argumentative, belittling and intimidating;

(b) engaged in behaviour which included raising her voice, standing close to the plaintiff and pointing her finger in the plaintiffs face;

(c) questioned the plaintiff in an accusatory manner as to why he had made the complaint;

(d) told the plaintiff that he had raised his concerns inappropriately by going to the OHO;

(e) asked the plaintiff whether he had something personal against the medical imaging assistants;

(f) in response to a query from the plaintiff, advised the plaintiff that the only persons in the Department who were aware that he had made a complaint were herself and the Medical Imaging Supervisor, Mark Bennetts; and

(g) in response to the plaintiff advising her that it was clear to him that other people in the Department were aware he had made the complaint, denied that she was the source of that information."

• [28] The third event is that pleaded in paragraph [13], which deals with the more generalised inappropriate conduct which is alleged against Ms Dolkens between April 2018 and August 2018. That allegation is as follows:

"Further, in the period of time between April 2018 and August 2018, the plaintiff was subjected to instances of the offending behaviour by Ms Dolkens which were so regular that it is not possible for the plaintiff to particularise all of the offending behaviour, however, it included:

(i) using abusive and threatening language and demeanour towards the plaintiff;

(ii) making inappropriate comments in passing to the plaintiff; and

(b) refusing the plaintiffs requests for up-skilling and promotional opportunities, including by directly asserting that she would not let him advance; and

(c) excluding the plaintiff from staff meetings and from information about changes within the Department."

• [29] The fourth, fifth and sixth events are those pleaded in paragraph [14], which deal with general inappropriate conduct between April 2018 and August 2018, which Mr Benjamin Adams[3], Ms Hayley Morgan[4] and Ms Amanda Sutherland[5] are alleged to have engaged in. In relation to Ms Morgan and Ms Sutherland, the alleged offending behaviour is contained in sub-paragraph [14](a) and sub-paragraph [14](b) only. In relation to Mr Adams, the alleged offending behaviour is contained in sub-paragraph [14](a) through to sub-paragraph [14](c). Those allegations are as follows:

"Further, in the period of time between April 2018 and August 2018, the plaintiff was subjected to instances of the offending behaviour by medical imaging assistants employed by the Department, specifically Mr Adams and assistants named Hayley and Mandy, which were so regular that it is not possible for the plaintiff to particularise all of the offending behaviour, however, it included:

(a) ignoring, excluding and alienating the plaintiff, including by directly refusing to greet him, speak to him, or follow his directions;

(b) spreading false rumours about the plaintiff; and

(i) speaking to the plaintiff in a manner which was rude and aggressive;

(ii) directly refusing to follow instructions given to him by the plaintiff;

(iii) making inappropriate comments to the plaintiff in front of patients;

(iv) obstructing the plaintiff from teaching student radiographers;

(v) apparently deliberately undertaking tasks which the plaintiff had identified in the complaint as being inappropriate for medical imaging assistants; and

(vi) refusing to cease undertaking tasks included in the complaint when asked to do so by the plaintiff and saying words to the effect of: "I have the support of Jenny so I can do what I want"."

• [30] The seventh event is that pleaded in paragraph [15], which deals with general inappropriate conduct which is alleged against Ms Green between April 2018 and August 2018. That allegation is as follows:

"Further, in the period of time between April 2018 and August 2018, the plaintiff was subjected to instances of the offending behaviour by his line manager employed by the Department, Rebecca Green, which were so regular that it is not possible for the plaintiff to particularise all of the offending behaviour, however, it included:

(a) ignoring and isolating the plaintiff, including by refusing to greet the plaintiff while greeting others in a room;

(b) speaking to the plaintiff in a manner which was rude and abrupt and walking away from the plaintiff while he was talking to her; and

(c) rostering the plaintiff with a heavy workload."

• [31] Paragraph [16] pleads that as a consequence of the offending behaviour in those seven event categories, all of which were said to have occurred between April 2018 and August 2018, the plaintiff sustained a psychiatric injury.
• [32] The breaches of the pleaded duty of care, both in the tortious and a contractual sense, are then pleaded in paragraph [17]. Paragraph [17] provides as follows:

"The injury was caused by the defendant's breach of its duty of care to the plaintiff, and its breach of the contract of employment, in that it:

(a) failed to take reasonable care for the plaintiffs safety, including with respect to psychiatric injury;

(b) failed to provide a safe system of work, specifically with respect to communication between staff within the Department;

(c) failed to provide a safe place for the plaintiff to work;

(d) exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care;

(e) caused, permitted or allowed the fact of the plaintiff having made the complaint to the OHO to become common knowledge known within the department in circumstances in which it ought to have kept that information confidential;

(f) by its employees or agents, for whose actions it is vicariously liable, engaging in the offending behaviour which was foreseeably likely to cause a psychiatric reaction which might include a psychiatric injury;

(g) caused, permitted or allowed its employees to engage in the offending behaviour in circumstances where a reasonable employer would have prevented that conduct;

(h) failed to properly or adequately supervise its employees within the Department so as to prevent conduct which was reasonably likely to cause a psychiatric injury, including the offending behaviour;

(i) failed to devise, implement and supervise a proper or adequate procedure for dealing with complaints received through the OHO so as to ensure that:

(i) the fact of a complaint having been made by an employee remained confidential to the minimum management staff necessary to investigate and report to the OHO on the complaint;

(ii) employees acting as "whistleblowers" were protected; and

(iii) its employees did not engage in victimisation, retribution, bullying or harassment of a person who made a complaint to the OHO;

(j) failed to properly train, instruct and/or to supervise its employees to ensure that they treated other staff in an appropriate and professional manner and which did not create a risk of psychiatric injury; and

(k) failed to take any, or any adequate or proper, steps to assess the risks of psychiatric injury to its employees."

[33] Sub-paragraph [17](f), in effect, pleaded a vicarious liability case.

• [34] Paragraph [18] pleaded that the injury was caused by the breaches, the breaches were a necessary condition of the occurrence of the injury, and that it was appropriate under the scope of liability to extend to the injuries because the injuries had occurred in the course of the plaintiff's employment with the defendant as a consequence of the plaintiff performing the duties of his employment, over which the defendant had responsibility and control.
• [35] Finally, paragraphs [19] to [20] plead out the damages and loss which were said to have been suffered.
• [36] The duties and the breaches of duty were extremely broadly pleaded. No particulars had been sought of those broad allegations in order to tie to the plaintiff to a specific case. The plaintiff's opening of his case maintained the generalised breadth of the case.
• [37] Turning then to the defence.
• [38] Paragraph [2] of the defence pleaded that a duty of care in tort, or its equivalent in contract, were only conditional upon the defendant exercising reasonable care and steps. It pleaded that any duty of care owed to the plaintiff was only in respect of foreseeable risks of injury, being a risk which the defendant either knew of or could have reasonably known of, with such response to the risk only needing to be that of a reasonable person in the position of the defendant, having regard to the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities. It was specifically pleaded that any duty did not extend to:

(a) requiring workers to greet one another;

(b) requiring workers not to gossip; and

(c) stamping out rumours.

The pleading acknowledged the role of ss 305B to 305D of the WCR Act.

• [39] In relation to the seven categories of events, the defendant's primary position was that it denied that the inappropriate conduct alleged had occurred. Those denials were at paragraphs [4] to [10] of the defence.
• [40] In addition, the defendant pleaded that it:

(a) had a Human Resources ("HR") department;

(b) the plaintiff made no complaint to the HR department in respect of the alleged offending behaviour;

(c) the defendant had grievance and complaint procedures in place;

(d) details of the procedures were available to all workers on the hospital intranet;

(e) the plaintiff did not avail himself with the grievance and complaint procedures;

(f) the plaintiff made no contemporaneous complaint in respect of the alleged offending behaviour; and

(g) the plaintiff was not subjected by staff to victimisation, retribution, bullying, harassment and abuse.

• [41] The defendant alleged that Ms Dolkens did not disclose the plaintiff's identity as the complainant to the wider Department staff. It was the defendant's case that the only other person in the Department to whom she disclosed the plaintiff's identity as the complainant, was a Mr Mark Bennetts, who was the line manager of the radiography section of the Department.
• [42] It was admitted that on or about 22 May 2018, Ms Dolkens spoke to the plaintiff about the subject matter of the complaint, but otherwise the specific inappropriate conduct alleged against Ms Dolkens was denied. In this respect, see paragraph [7] of the defence.
• [43] The defendant separately alleged that prior to the making of the complaint to the OHO on 12 December 2017, the plaintiff had a long-standing Major Depressive Disorder, and that his ongoing mental health condition was wholly referrable to that pre-existing long-standing major depressive disorder[6]. It was alleged that the plaintiff was not treated for that major depressive disorder in 2018, and that the major depressive disorder remained untreated. It was pleaded that any perception the plaintiff had, or has, that he was subjected to the offending behaviour alleged in the statement of claim was as a result of his misperceptions caused by the major depressive disorder. In this regard, see paragraph [11A] of the defence.
• [44] In relation to the specific breaches of duty alleged, the defendant responded with specificity in paragraph [12] of the defence. Paragraph [12] provided as follows:

"As to the allegations in paragraph 17 of the Amended Statement of Claim the Defendant:

(a) Denies it failed to take reasonable care for the Plaintiff's safety as it:

(i) Did not disclose who the complainant was when it investigated the Plaintiff's complaints;

(iii) Had grievance and complaints procedures in place;

(b) Denies it failed to provide a safe system of work as the investigation into the Plaintiff's complaints made to the Office of the Health Ombudsman did not disclose who the complainant was and, in any event, the Defendant:

(i) Could not reasonably be expected to prevent workers gossiping;

(ii) Could not reasonably be expected to stamp out rumours in the workplace;

(iii) Could not reasonably be expected "to control communications between staff";

(v) Had grievance and complaints procedures in place;

(vi) Did not receive a complaint from the Plaintiff in respect of any of the offending behaviour alleged in the Statement of Claim;

(c) Denies it failed to provide a safe place for the Plaintiff to work as the Defendant had appropriate procedures in place to confidentially investigate the Plaintiff's complaints;

(d) Denies it exposed the Plaintiff to a risk of injury on the basis that, in the Defendant's belief, the allegation is untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8, 9 and 10 hereof and, in any event, the risk of injury to the Plaintiff was:

(e) Denies it caused, permitted, or allowed the fact that the Plaintiff had made a complaint to the Office of the Health Ombudsman to become known within the department on the basis that, in the Defendant's belief, the allegation is untrue because of the matters pleaded above in paragraph 4(b) hereof;

(f) Admits it is vicariously liable for its employees who, in the course of their employment with the Defendant, breach the duty of care owed by the Defendant to the Plaintiff, but denies the allegation of vicarious liability herein for its employees on the basis that, in the Defendant's belief, the allegation is untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8. 9 and 10 hereof. The Defendant is not required to plead to the allegation of vicarious liability for agents as the Plaintiff has not made any allegations against any person who is identified by the Plaintiff as an agent (as opposed to employee) of the Defendant;

(g) Denies it caused, permitted, or allowed its employees to engage in offending behaviours and denies the allegations they did so on the basis that, in the Defendant's belief, the allegations are untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8, 9 and 10 hereof and, in any event, the Defendant:

(i) Could not reasonably be expected to prevent workers gossiping;

(ii) Could not reasonably be expected to stamp out rumours in the workplace;

(iii) Could not reasonably be expected "to control communications between staff";

(h) Denies it failed to properly or adequately supervise its employees within the department to prevent conduct likely to cause a psychiatric injury and denies the allegations the employees engaged in such conduct on the basis that, in the Defendant's belief, the allegations are untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8, 9 and 10 hereof and, in any event, the Defendant:

(i) Could not reasonably be expected to prevent workers gossiping;

(ii) Could not reasonably be expected to stamp out rumours in the workplace;

(iii) Could not reasonably be expected "to control communications between staff";

(iv) Had an employee code of conduct and workplace non-harassment policy in place;

(vii) Had grievance and complaints procedures in place;

(viii) Did not receive a complaint from the Plaintiff in respect of any of the offending behaviour alleged in the Statement of Claim;

(i) Denies it failed to devise, implement or supervise a proper procedure for dealing with complaints as the Defendant complied with its policies and procedures;

(j) Denies it failed to properly train, instruct, and/or supervise its employees as the conduct alleged by the Plaintiff did not occur and there was nothing to instruct or supervise its employees on and, in any event, the Defendant:

(i) Could not reasonably be expected to prevent workers gossiping;

(ii) Could not reasonably be expected to stamp out rumours in the workplace;

(iii) Could not reasonably be expected "to control communications between staff";

(iv) Had an employee code of conduct and workplace non-harassment policy in place;

(v) Required all employees to comply with the employee code of conduct and non-harassment policy;

(vii) Had grievance and complaints procedures in place;

(viii) Did not receive a complaint from the Plaintiff in respect of any of the offending behaviour alleged in the Statement of Claim.

(k) Denies it failed to take any or any adequate or proper steps to assess the risk of psychiatric injury to its employees as the Defendant took appropriate steps to investigate the Plaintiffs complaints in a confidential manner;

(l) Says there were no further precautions for the safety of the Plaintiff the Defendant could reasonably have taken or been expected to take;

(m) Says further if, which is denied, the Defendant breached the duty it owed to the Plaintiff:

(i) The breach was not a necessary condition of the occurrence of the offending behaviour alleged in the Statement of Claim and any injury thereby suffered by the Plaintiff;

(ii) It is not appropriate for the scope of liability of the Defendant to extend to any injury suffered by the Plaintiff;

(iii) It was neither reasonable nor necessary for the Defendant to have taken the precautions the Plaintiff alleges the Defendant should have taken;

(iv) The Defendant taking the precautions the Plaintiff alleges the Defendant should have taken would not have resulted in a different outcome in respect of the Plaintiff's mental health condition."[7]

• [45] I turn to a consideration of the legal principles applicable to the imposition of a duty, the scope of such a duty of care, the process of determination of a breach of the duty and causation.
• [46] It is uncontroversial that an employer owes an employee a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.[8]
• [47] There will be a co-existent contractual duty of care effectively in the same terms. That contractual duty of care arises by implication from the contract of employment. In this case, no written contract of employment was produced, but it was not suggested that there was anything within the present contract of employment which would militate against the implication of the usual implied term.
• [48] In an employment scenario, a duty of care is determined by considerations of the reasonable foreseeability of risk and the "salient features" of the relationship between the employee and the employer.[9]
• [49] The scope of the relevant duty is important, since it is a matter essential to the determination of the case. Without an identification of the scope of the duty, articulation of breach cannot be decided.[10] The level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the individual case.[11] In this respect, much of the pleaded scopes of the duty in the statement of claim were formulated at a high level of abstraction and lacked a refined specificity which identified what the duty of care obliged to be done. Much of the pleaded breaches of the duty suffered from the same vice.
• [50] Whatever the scope of a duty of care in a given circumstance, it is important to remember that it imposes an obligation to exercise reasonable care, and it does not impose a duty to prevent potentially harmful conduct.[12]
• [51] I accept the submission that was made by the plaintiff that the "risk of injury", as used in s 305 of the WCR Act is not to be restricted to the foreseeability of the particular circumstances in which the plaintiff sustained injury, but encompasses the more general nature of the harm that ensued, or the nature of the circumstances in which the harm was incurred. However, the duty is circumscribed by the notion of reasonableness.

"[73] Both Koehler and Kozarov identify the relevant principles, and explain how they are to be applied, in the context of a negligence claim for psychiatric injury to an employee arising from the performance of work."

[74] Koehler proceeds on the understanding that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid injury that is reasonably foreseeable. As part of its duty the employer must take all reasonable steps to provide a safe system of work.

[75] In giving content to that duty, Koehler emphasises that close attention must be given to the particular factual circumstances which is essential to a proper understanding of the interrelated issues of how the duty of care arises, whether injury of the relevant kind was reasonably foreseeable and what is expected of an employer acting reasonably in responding to that risk.

[76] Implicit in the reasoning of the High Court is an acceptance that there is no special rule for psychiatric injury and the 'central inquiry' remains constant namely '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'. That is not to say that cases of psychiatric injury to employees do not throw up issues that are different to those involving physical injury. Plainly they do. A psychiatric injury may be less easy to foresee than a physical consequence. The psychological makeup of the individual employee, which may be difficult to discern or understand by an employer, may influence whether psychiatric injury is a likely or possible outcome.

[77] In considering what is reasonably foreseeable, it is necessary to have regard to the nature of the work and what the parties have agreed under the contract of employment. That inquiry remains quintessentially factual. In Koehler the High Court refused to embrace as a universal proposition that because stress may cause psychiatric injury, all employers must recognise that all employees are at risk of psychiatric injury from stress at work and therefore such injury is reasonably foreseeable. The vice of that proposition was that it serves to aggregate what is an individual inquiry directed to the duty owed to each particular employee.

'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,[14] 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.

Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.'

[79] In Koehler the plaintiff failed because the employer had no reason to suspect that the performance of the duties which she had agreed to perform were causing her psychiatric injury. There was nothing about the nature of the duties that would have caused alarm, she had agreed to perform the work thus indicating her ability and willingness to do so and there were no 'evident signs' that pointed to a risk of illness or vulnerability.

[80] What Koehler shows is that there is often very little utility in framing the relevant question in a way that is divorced from the factual environment in which the question arises. The proposition that Ms Koehler's employer owed her a duty to take reasonable care to avoid psychiatric injury throughout her employment is not necessarily incorrect, but it is hardly illuminating. It was the focus on the facts that underpinned the Court's inquiry as to whether, and when, the duty was 'engaged'. It was only when the issues came together in a concrete way that the elements of a claim in negligence could meaningfully be examined. As Edelman J observed in Kozarov, negligence does not exist in the air.[15]..."

"[88] Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of 'evident signs' by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.

[89] Kozarov makes plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees.

[97] In assessing what is reasonably foreseeable, it is important to appreciate that the task involves an evaluative assessment undertaken for the purpose of imposing a legal obligation and must take into account the perspective of the person on whom legal responsibility may be imposed.

[98] As Gleeson CJ said in Tame the issue is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.[17] For that reason it is not the same as predictable. As Spiegelman CJ observed in Nationwide News Pty Ltd v Naidu:

'The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.'[18]"

• [55] As referred to above, the defendant's duty is not to avoid risk but to act reasonably in response to it. I accept that what a court must do is identify what a reasonable person would have done rather than looking backwards to identify what would have avoided the injury.[19]
• [56] Ultimately, a finding of breach of duty will not inevitably follow from a failure to have eliminated a risk that was reasonably foreseeable and preventable.[20]
• [57] In a case which involves bullying or harassment, questions may arise such as what management was aware of at any particular point in time. The knowledge of management may influence the formulation as to what the scope of the duty required at a particular point in time. Equally, the fact-finding process will need to identify what, if any, of the particular inappropriate acts are found to have occurred. Whether there is a breach of the relevant duty may well involve not simply a consideration of individual acts and whether they are found to have occurred, but also a consideration of the potential cumulative effect of such pleaded acts.[21]
• [58] Equally, knowledge of an employee having a special psychiatric vulnerability may also affect the lens through which the scope of a duty may be formulated. In this case, the plaintiff eschewed from its opening any suggestion that the defendant ought to have been aware that the plaintiff had some type of special psychiatric vulnerability. The case was conducted on this basis. Accordingly, this particular factor plays no role in this case in the identification of the scope of the duty that may have been owed.
• [59] 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[22], or to provide a happy workplace.[23]
• [60] I will bear these principles in mind when deciding this case. The appropriate course is to first make the relevant findings of fact, before then proceeding through the lens of those findings to make determinations as to what was the particular scope of the duty owed, whether that scope of duty was breached and whether that breach was causative of psychiatric injury.
• [61] I bear in mind that any factual finding that I make must be on the balance of probability and that the plaintiff bears the relevant onus in this case.

• [62] I turn to the background facts of this case. They will be dealt with under a number of sub-headings.

(a) The plaintiff's personal details and education

• [63] The plaintiff was born on 18 February 1974 and is currently 50 years of age.
• [64] The plaintiff has a partner, with whom he has been in a relationship with for more than 20 years. They have two children together.
• [65] In the early 2000s, he studied radiography at RMIT University in Victoria, and ultrasound at Monash University in Victoria. By 2006, he had completed his qualifications. The radiography degree had involved three years of study with an additional one year of internship, and the ultrasound qualification had been via a post-graduate course.
• [66] The plaintiff is qualified to do general X-ray work. He has worked in the areas of MRI, CT, and fluoroscopy. The discipline of fluoroscopy is the use of X-rays to provide a live, real-time imaging whilst procedures are undertaken.
• [67] At some stage, the plaintiff and his partner decided to move to the Gold Coast. Once at the Gold Coast, the plaintiff worked in private practice at South Coast Radiology for approximately three years. He then moved to the Hospital, where he was performing general X-ray scans, as well as a range of ultrasound studies. Within the sonography section, the plaintiff was part of an ultrasound team of about 15 persons. Within the Department itself, there were approximately 160 persons employed.
• [68] The plaintiff described his work as a radiographer and sonographer in the public health system as being about patient care and doing the best for the patients, without having to make decisions around profit.

• [69] Some time prior to 2013, the plaintiff injured his shoulder. The shoulder injury occurred from the plaintiff's work in ultrasound. The undertaking of an ultrasound by the plaintiff required the probe to be in his right hand in circumstances where he was often positioned to the right of the patient. The plaintiff's left hand would be used to operate a computer at the same time. To perform an ultrasound examination, constant pressure would have to be applied on the probe. Most examinations lasted between 20 - 30 minutes at a time and an operator might scan 15 - 17 patients a day. The plaintiff explained that certain types of examination would require him to position the probe in a way which would require further stretching and extra pressure through the probe. These actions had, in effect, caused the injury to his shoulder. He identified that he had received a tear to the infraspinatus tendon.
• [70] The plaintiff explained that the injury to his right shoulder then caused his X-ray duties to become very difficult.
• [71] This led to a WorkCover claim being made by the plaintiff.
• [72] At this time, the plaintiff sought assistance from a GP and evidently took some time off work. The plaintiff gave evidence of a meeting that occurred at his work with a Mr John Anderson and certain other persons from the HR department at the Hospital. At the meeting, he was told by Mr Anderson that if he did not return to full duties in the following week then the plaintiff should reconsider his employment at the Hospital.
• [73] The plaintiff identified that at this time he was not ready to recommence work at the Hospital. He said that he was very upset because he had worked six years for a career that he really loved, and that he had been told by his employer that he was no longer welcome because of the injury. He stated, "I did not receive any sympathy for my injury."
• [74] In addition to the WorkCover claim, by 2013, the plaintiff had commenced legal proceedings in the District Court of Queensland. He was legally represented at this time.
• [75] A suite of medical reports were obtained for the court proceeding. One of the reports obtained was from Dr De Leacy and was dated 15 April 2013. That report had been requested by the plaintiff's side. Dr De Leacy was a consultant psychiatrist and a consultant pathologist. Dr De Leacy saw the plaintiff in his capacity as a psychiatrist.

His mood was depressed and he also showed signs of anxiety.

His speech was without defect, but he spoke quietly.

There was no abnormality of thought in terms of thought content or form and he certainly was not delusional. He was able to give a reasonable history.

Cognitively, he was intact in the gross sense that he is in full consciousness and orientated, but he had only superficial knowledge of current affairs. He was slow at tests of concentration and had poor short-term memory. He does not lack intelligence but is not operating cognitively at the normal level, and this is due to distraction due to his issues. His insight is reasonable and he understands he has a stress-related disorder. His judgment is good, probably, because he is now seeking professional assistance for this."

• [79] Under the heading, 'Summary and Assessment', the following was recorded:

"This is a case of a 39 year old man with a partner and child who is no longer working due to an injury. He is on leave because of a shoulder injury that occurred due to the circumstances that he worked under. He has developed secondary psychological issues in relation to his injury and continues to be depressed, anxious and now receiving care from a psychologist, but I note that he has not seen a psychiatrist and not been prescribed anti-depressants."

• [80] Then in answer to specific questions the following appeared:

The mental disorder that I have diagnosed, as would be expected in a case of this type - he is suffering from an adjustment disorder with anxiety and depressed mood. He does not have major depression. An adjustment disorder is a DSM-IV diagnosis that describes the actions to define stressors, which in this case are pain and disability.

The prognosis in this case is guarded. He is quite [un]well[24] in his mood and quite anxious about his future, and while he has pain and disability, his psychological state is not likely to improve. It is likely the shoulder will remain painful and cause restriction for the foreseeable future, and because of this he will have mood disturbance for the foreseeable future. This may be assisted by counselling, but he is left with the permanent impairment rating I have given...

1. Your recommendation for future treatment including an estimate of the costs of such treatment

Mr Kemp should continue to have his treatment. He is having psychological treatment...he may need further sessions for another four months. In addition, an anti-depressant may be helpful...I do [not][25] expect a full resolution of his condition with treatment and he will be left with the permanent impairment rating I have given above."

• [82] Early in the report it was recorded as part of the history communicated by the plaintiff to Dr De Leacy that:

"...he became rather distressed because of his condition and had developed depression, anxiety and significant panic attacks. He said that he would get sweaty palms and inner chest pain. He also referred to a psychologist; he has seen the psychologist five times to date and has continued to see her on a fortnightly basis...

He is depressed, anxious and he is worried - he worries about his future and whether he will be able to get back to work. He needs to earn an income...

His appetite has decreased. His weight has decreased.

His social life is markedly reduced; he hardly ever goes out.

His relationship has suffered with high levels of tension, more dependency on his wife, some irritability and loss of libido.

He has problems with concentration and short-term memory. He is highly distracted by his pain and his thought. He can no longer concentrate enough to watch a movie.

• [83] It was recorded that he had no past history of psychiatric disorder. The following was also recorded as follows:

"He has never had a WorkCover claim in the past. He has never had a third-party motor vehicle accident claim. He has never been involved in litigation or bankruptcy. He has no criminal record and no adverse driving record."

• [84] There was a further psychiatric medico-legal report obtained in the 2013 District Court proceeding. This report was obtained by the defendant to that proceeding. It was from a Dr Alfred Chung, who was a consulting psychiatrist. In the report, under current mental health symptoms, it was recorded that the plaintiff felt his sleep was varied on a night-by-night basis, that he had difficulties falling asleep, would only sleep for three or four hours and then wake up at approximately 1.00 am to 2.00 am. He would then sleep for another hour or two before his daughter would wake up at 6.00 am. The plaintiff was also recorded as saying that he might sleep in the afternoon for one to two hours.
• [85] The plaintiff was recorded as saying that he lacked energy, had lost his appetite and was unmotivated. His partner was a nurse involved in night duties and he looked after their one child during the day. He was recorded as having difficulty reading a book and that he could not concentrate on watching a movie. He claimed to have poor memory and was regularly tearful. He was recorded as saying that he may have cried three to four times since the injury but did not know what he would cry about. He claimed to feel stressed and worried most of the time and worried about how he would support the family in the future. He claimed he felt anxious most of the time and that he might feel less anxious when he was out and about with his partner and his daughter.
• [86] Under current treatment and medication, it was noted that the plaintiff was not on any antidepressants. The plaintiff is recorded as saying that no one had offered him treatment with antidepressants, and he also felt that he would be reluctant to take antidepressant medication. When asked by Dr Chung if he did not feel his depression was bad enough for antidepressants, the plaintiff claimed he did not know.
• [87] It was recorded that he was seeing a psychologist, who suggested he do something active on a daily basis. He was recorded as having not yet seen a psychiatrist.
• [88] Under a heading, 'Summary and conclusions', Dr Chung recorded that the plaintiff satisfied the DSM-IV criteria for an adjustment disorder with anxiety and depressive symptoms based on his own reporting of symptoms. He also proffered the opinion that the plaintiff's psychological symptoms were associated with his alleged shoulder pain and disability.

"When I asked Mr Kemp as to why he did not ask his general practitioner for treatment for depression if he felt that he was depressed, he told me it was not offered to him. He then qualified that by saying that even if he was offered the medication, he would not take it, as he does not want to take anti-depressant medication."

• [90] Under the heading, 'Prognosis', Dr Chung recorded:

"I believe Mr Kemp's prognosis is poor. It seems there is little motivation to return to work. Mr Kemp's belief is that the injury was caused by his work. He also believes the treatment for his shoulder may worsen his symptoms.

Despite saying that he feels depressed, he has not sought treatment for his depression, apart from seeing a psychologist."

• [91] Dr Chung proffered the opinion that the plaintiff's symptoms were consistent with an adjustment disorder with anxiety and depressive symptoms, but was unable to proffer whether they arose out of a shoulder injury or they might have arisen out of secondary circumstances. In relation to the question of whether the condition was permanent, Dr Chung gave the answer:

"The condition is unlikely to be permanent. Once the financial incentive has ceased, it is likely he will return to work."

• [92] Later on, Dr Chung gave more detail as follows:

"Mr Kemp has an adjustment disorder with anxiety and depressive symptoms. I do not believe that he has a condition that will permanently cause impairment. His future ability to carry out his work is unlikely to be impaired once his physical situation is no longer a problem to him."

• [93] The plaintiff's statement of loss and damage from the District Court action in 2013 was tendered into evidence by the defendant in this current proceeding. That document was signed by the plaintiff on 28 May 2013. Sub-paragraph [2](d) of that statement dealt with particulars of any disability resulting in the loss of earning capacity and of the amounts of any future economic loss claim associated with that disability.
• [94] At sub-paragraph [2](d)[ix], the following appeared in relation to the plaintiff's psychological injury:

"Dr Eric De Leacy, psychiatrist, opines that the plaintiff will have psychological issues if he was working in that he would be flustered and would be overcome with anxiety. Dr De Leacy opines that the plaintiff's pain would affect his concentration and focus. He notes that the job that the plaintiff does is highly responsible and the correct diagnosis depends on the quality of his work. Dr De Leacy opines the plaintiff is not in a position to take the responsibility at the current time or for a reasonable time in the future until his shoulder and mood improves."

• [95] At sub-paragraphs [2](d)[xi] and [2](d)[xii], statements appeared to the effect that the plaintiff's injuries prevented him from working as a sonographer and radiographer, that the plaintiff would need to re-train, and that the plaintiff was unlikely to earn an income in the future as high as he had been earning with Queensland Health.
• [96] Then at paragraph [3] under 'Particulars of pain and suffering experienced by the plaintiff and the loss of amenities caused by the injuries', the following appeared:

"(d) The plaintiff suffers from anxiety and depression."

• [97] In his evidence-in-chief, the plaintiff sought to distance himself from the content of the statement of loss and damage. He gave evidence that there were a number of things that he did not feel were very accurate. For example, he identified that he always believed that he was going to return to work and he did not think the level of anxiety that he had was significant enough to impact his ability to go back to work. He added that he was feeling sad, but that was linked to the feeling that he had lost his job, his career and his ability to support his family. Further, if he was able to go back to work, he felt that those feelings would go away. He described his anxiety at that time as very mild compared to the anxiety that he was feeling at the time of the hearing. He also sought to discount his knowledge of the content of the statement of loss and damage. He said that he would have been told to sign the document, that documents were often left at the reception of Shine Lawyers (his then lawyers), that he did not know what the document was for, and he did not have an understanding as to the purpose of the document in his then claim.
• [98] At some time after the signing of that document, Shine Lawyers informed the plaintiff that WorkCover had made an offer and their advice was that he should take the offer. He gave evidence that he took offer. The content of the offer was not the subject of evidence in this proceeding.
• [99] Whilst not being exact, the plaintiff thought that the time between when he accepted the offer and when he returned to work may have been seven to eight months. He gave evidence that he had done a whole range of things to try and get better, including physiotherapy, acupuncture, herbal medicine in the form of a smoke treatment, and massage. The plaintiff contacted the Hospital in order to seek to return to work.
• [100] As part of his then seeking to return to work, the plaintiff participated in a meeting with a Mr Brett Jackson from the Department of the Hospital. In addition to Mr Jackson, a person called Yana and other representatives from the HR department of the Hospital attended the meeting with the plaintiff and his partner. The plaintiff described this meeting as a very hostile environment and said the Hospital personnel were not supportive of his return to work. The plaintiff referred to the person called Yana, saying that he was not ready to return to work and that he should consider doing something else.

• [106] Significant events occurred in 2017 which affected the plaintiff from a psychiatric perspective. In a six-page document dated 26 August 2018 written by the plaintiff to WorkCover, the plaintiff documents, at least from his perspective, certain alleged inappropriate conduct that he claimed had occurred to him prior to 11 April 2018. He expressed a belief that this had, in conjunction with later conduct, caused him psychological or psychiatric injury. That document was typed up by his partner, but was populated by information the plaintiff was providing to her. The plaintiff gave evidence that at the time he assisted his partner to type this document, he was mentally very unwell. His partner gave evidence to a similar effect.
• [107] I accept their evidence on this issue. I am satisfied that at the time this 26 August 2018 document was created, the plaintiff was suffering a major depressive disorder.
• [108] The document starts off as follows:

"In the recent few years at work, I have been subjected to a significant workplace harassment and bullying by my managers and staff within the Medical Imaging Department at Gold Coast University Hospital. I have also been subjected to significant victimisation and reprisal for reporting such behaviour."

• [109] It can immediately be seen that the inappropriate conduct alleged in this document extends a significant distance into the past and well before 11 April 2018. Under a heading, 'Verbal Abuse', that conduct is said to have occurred in the last two years by the director of medical imaging, Ms Dolkens, the plaintiff's line manager Ms Green[26], several porters, an MIA, several ward nurses and doctors. Under a heading 'Intimidation', no particular timeframe is given. Under a heading 'Made to feel isolated and alienated', it was said that the medical imaging supervisor (the plaintiff's line manager in the radiography section) a Mr Bennetts, had not spoken to him directly for approximately five years.
• [110] Under a heading 'Assault', the plaintiff records that he was assaulted by a porter whilst working in ultrasound. It is said he made a complaint which resulted in the blame being put back on him and he was made to feel guilty and at fault. It recorded that Ms Dolkens accused him of lying, reporting the incident incorrectly and that he had overreacted. The assault incident being referred to had allegedly occurred on

• [111] The plaintiff's version of events was that a porter had delivered a patient very late to the Department and he had politely and professionally explained that due to the tight schedule, the patient could not be scanned. The plaintiff recorded that the porter unexpectedly became very aggressive by yelling and verbally abusing the plaintiff. He says he was standing in a small room with the very physically large porter standing in the doorway, so that he could not leave. He said he was verbally abused and physically threatened for several minutes while the porter stood close to him with clenched fists and the porter waved his arms at the plaintiff before the porter then left. The plaintiff says that he believed that he had been at serious risk and danger of injury. He recorded that the incident was witnessed by a nurse in the Department. He reported the incident on the intranet reporting system via a report known as RiskMan, as he had been trained to do.
• [112] The plaintiff then recorded that on 24 May 2017, Ms Dolkens requested a meeting with him. He records that when he sat down in her office, he could tell she had a very aggressive disposition towards him by tone and volume of her voice, facial expressions and her body language. He says that she told him that he had incorrectly reported the incident with the porter by lodging the RiskMan report online, and that the complaint should have been dealt with only within the Department. He records that Ms Dolkens told him that she was offended by the plaintiff's statement in the RiskMan report, as it suggested that the plaintiff believed the complaint was not taken seriously. The plaintiff says that he expressed his concern to Ms Dolkens that the porters had acted aggressively towards him and that he was expected to work with them following his complaint and during the extended time it took for her to investigate and intervene in the issue. He then specifically recorded in the 26 August 2018 document that "without any evidence or grounds", she went on to suggest that the incident was his fault and that the plaintiff should be more considerate towards his co-worker.
• [113] The plaintiff attributed to Ms Dolkens a comment that sonographers had adequate time in the day for patients who were delivered late from the ward, and that the sonographers were lucky to have 30 minute tea breaks and a one hour lunch break. The plaintiff says that he responded by saying that "[we] do not always get our breaks or even part of them", and that Ms Dolkens responded very aggressively and told him that she had been advised through Ms Green and another person that sonographers were always provided their full breaks. He said that he told her that he disagreed. He then says that she told him she did not believe him and would rather take the word of both Ms Green and the other person, and that the plaintiff was not being truthful. The plaintiff records that he said he had no reason to lie to her and maybe she should talk to the other sonographers.

(d) General observations on the condition of the plaintiff leading up to 11 April 2018

• [136] Returning to the general topic under this sub-heading, I note that an analysis of the plaintiff's employment leave reports between the period of 1 January 2015 to 11 April 2018 showed that he had taken 135 sick days leave, 10 days spousal leave, 24 days of carer's leave and 40 rostered days off.
• [137] During this period, the plaintiff's extensive sick leave, in part, could be explained by his suffering from a condition known as sarcoidosis. However, that condition was not put forward as an absolute explanation for all of the sick leave.
• [138] Ms Rebecca Green, in her evidence, observed that the plaintiff was not an easy person to work with, he had high absenteeism and, when at work, would disappear from the work area without informing anyone. Ms Dolkens gave similar evidence about the plaintiff often being absent from work and sometimes not providing advanced notice of the absence.
• [139] An analysis of the plaintiff's employee records reveal significant periods of sick leave taken by the plaintiff after the porter incident in May 2017, up to 28 February 2018. It is not possible to attribute a particular portion of that increased sick leave to a psychiatric condition the plaintiff was suffering. What can be said is the increase in sick leave in this period coexisted with a worsening mental condition. This fact provides some support for the inference that the worsening mental condition of the plaintiff was playing a role in his absenteeism.
• [140] There exists other evidence which supports that the plaintiff's psychiatric condition had been adversely affected, at least from the time of the May 2017 porter incident.
• [141] First, the 26 August 2018 letter from the plaintiff to WorkCover identified stressors on his mental wellbeing occurring well before 11 April 2018. Those specifically included the porter event in May 2017, the alleged meeting with Ms Dolkens (and what was alleged to be her inappropriate conduct at that meeting), and the alleged change in attitude and conduct by Ms Green. The letter had made the statement "in the recent few years at work" when referencing the generalised alleged conduct of workplace harassment and bullying by managers and the staff within the Department at the Hospital. In this document, the alleged significant victimisation and reprisals (as the plaintiff perceived them) were not identified as occurring simply from 11 April 2018.

"Before midway through 2017, you were saying every weekend you were doing something with family activities - yes?--- Yes. After mid-year 2017 - you were sort of - went down to two - maybe two weekends a month we would do, maybe, a short trip somewhere or a walk somewhere.

And was there any change throughout 2018?--- In 2018, everything stopped.

Well, do you recall when about in 2018 that stuff stopped?--- Early - early 2018.

So just thinking about some of the timelines, was it before April when you had the second meeting with Ms Dolken?--- Yep.

Why is it that that stopped or slowed down?--- It - it was to do with the way I was feeling and how I was behaving.

Okay. Was there any change, then, after the second meeting with Ms Dolkens?--- Yes.

At home?--- At home, I completely withdrew from my family and friends. I would stay in my room. I wouldn't talk to anybody. I was having constant panic attacks. I was crying a lot. I was unable to go anywhere; I was unable to leave the house."

• [145] The plaintiff went on to identify that in 2017 he was having sleep disturbances but he was still able to sleep at times. The plaintiff identified his sleep, his hygiene and his interactions with his wife deteriorated in 2018.
• [146] This issue was then explored in cross-examination. This commenced with an examination of the sick leave in the 2017 year up to 11 April 2018. It proceeded as follows[32]:

"From - in the next year, three months and 11 days, that's 2017 and 1 January to 11 April 2018, you went 59 to 135 sick leave days?--- From mid-2017, certainly, that's when the sick days started to increase.

And I come back to my proposition that by 11 April 2018, you were not a well man?--- That's correct. I don't believe I should have been working at all. My doctor was giving me Valium and I was taking Valium at work. That was the only way I was able to maintain my presence in the workplace. I was continued to be subjected to the bullying and harassment, and the Valium was a way that I was able to stay there. I regret - I regret that.

So by 11 April 2018, your view is that you shouldn't have been at work?--- I should not have been at work.

Okay. And taking Valium at - excuse me. It's referred to in the records as Diazepam, correct?--- That's correct.

JUDGE: Sorry, can I just clear. So that's by 11 April 2018, you were taking Valium before that period?--- I think I was. I - my memory of that time is very hazy. I think a lot of things that happened by mid-2018, my memory and record of it would be - I can't - I can't really remember my whole life from mid-2018 onwards. I couldn't tell you anything that I was doing or where I was. I was really an unwell person. And during that time that I was going to work, I was not attending meetings, I wasn't communicating with my managers, and I was taking lots of sick leave and no - no one ever asked me. No one approached me. No manager showed concern for me. Absolutely nothing happened from management the whole time."

• [147] The above numbered points support that there had been a decline in the psychiatric condition of the plaintiff before 11 April 2018. That is important, not least because it is only conduct from 11 April 2018 which is pleaded as underlying the causes of action by which the psychiatric injury is sued for.

(e) Documentary reports of interactions concerning the plaintiff in 2017 to

• [148] Ms Green conducted a number of Professional Development Plan reviews with the plaintiff. She made file notes in respect of those reviews. Those notes were tendered into evidence.
• [149] Even in February 2017 at a particular Professional Development Plan review and, with the benefit of hindsight, the notes from that review suggest that the plaintiff was then in a psychologically fragile position. At that review, Ms Green asked how the plaintiff's split shifts were going and whether the plaintiff was having enough variety in work between X-ray and ultrasound. She then recorded that the plaintiff "broke down in tears with constant mention to his lawsuit against QH[33]. [Plaintiff] stated regrets the whole thing, did not want to target/accuse/blame individuals he worked with. [Plaintiff] apologised to [Ms Green] if any offence was taken". There followed a reference to a recent complaint he had made about lack of tea breaks and care within the ultrasound department. The notes then recorded as follows:

"[Plaintiff] apologised for such complaints and stated, "I'm not concerned about my tea breaks, the important thing is the patient doing a quality scan." [Plaintiff] stated he was, "foggy" when writing about tea breaks. [Plaintiff] made comments about his meds and medications he is currently on and how much clarity he has now. [Plaintiff] made comment, when he has complained in the past, he thinks negatively and lets things build up and annoy himself...At completion of discussions, [plaintiff] tried to hug [Ms Green] and again apologised for offending [Ms Green] in the past. [Plaintiff] stated wanted to move forward and move on from the past."

• [150] In relation to this event, in evidence-in-chief, Ms Green said the following:

"Towards the end of the interaction, Jamie got very emotional and started crying and wanted a hug and he explained - he was saying to me that he regrets his case against the hospital and he got in too far deep and couldn't find a way out, so he had to keep going and he said he's never had an issue with tea breaks or not having equal workloads or things like that. He said he's - he's fine with the way the work is delivered for him and his tea breaks and he doesn't want any further issues..."

• [151] Another general file note of 24 May 2017 recorded the incident between the plaintiff and the porter having taken place on 18 May 2017. It, amongst other things, recorded the plaintiff on 19 May 2017 coming to tell Ms Green that the event had happened in her absence. Amongst other things, it recorded on 22 May 2017 Ms Green inquiring as to how the plaintiff was. She records that the plaintiff worked the morning session and no issue was voiced. A separate file note of 27 June 2017 recorded Ms Green inquiring of the plaintiff how he was and the plaintiff replying that he was all good now. A further file note of 6 July 2017 again recorded Ms Green inquiring how the plaintiff was going overall, with the plaintiff commenting that he was going okay. The notes go on to record what appear to be civil interactions between the two of them about rostering.
• [152] These contemporaneous records stand in stark contrast to the allegations made against Ms Green concerning her supposed behaviour post the porter incident as recorded in the 26 August 2018 letter.
• [153] On 4 October 2017, Ms Green undertook another six monthly review with the plaintiff of his Professional Development Plan. No adverse issues were recorded in that document. In a portion of that document which was filled out by the plaintiff, it was recorded by the plaintiff that he was enjoying his job moderately, that he would like to be considered for a higher level senior position, and that he would like provision of a fair career pathway for progression of his position level. His feedback was "staff often performed better if they feel valued and if their skills and experience is recognised, valued and rewarded".
• [154] There was an email chain tendered into evidence which started on 17 January 2018 and ended on 22 January 2018. The email chain dealt with a roster request by the plaintiff. It commenced with an email from the plaintiff to Ms Dolkens identifying how he had been traditionally rostered between ultrasound and X-ray so that it had allowed him to finish work on time and to pick up his children immediately after work. He identified that a problem had arisen for him when he did ultrasound shifts in the afternoon, as he would often run late and have to stay back to complete the work. He stated that this was a problem for him in terms of his ability to complete the shift on time and take care of his children after work. The plaintiff requested that he be rostered for the ultrasound in the morning so that it would not be a problem for him and his family.

• [159] Under this heading, I will make the findings which concern the conduct that is said to underly the breaches of the various pleaded scopes of the duty of care. I will first make findings about the bringing of the OHO complaint and the procedure adopted by Ms Dolkens. I will then make specific findings about the substance of the seven event categories as raised in the pleading.

(b) The OHO complaint - its communication to Ms Dolkens and the general procedure followed by Ms Dolkens after its receipt

• [160] On 13 December 2017, the plaintiff made an oral complaint to the OHO about health services provided by the MIA's within the Department of the Hospital.
• [161] It is uncontroversial that in making the complaint the plaintiff had requested that his identity be kept confidential and that it not be disclosed to the Hospital.
• [162] The OHO had documented the substance of the complaint by the plaintiff in a document headed, 'Record of Telephone Complaint'[34]. Within that document, at a section which commenced with the following phrase, 'What are your concerns/or the concerns of the consumer', the complaint was recorded as follows:

"Complainant explained that medical imagining assistants have recently been employed and were initially employed on limited duties. Complainant explained that in the last 6 months they have increased their duties and complainant feels they are carrying out work that should be carried out by a qualified professional.

Complainant explained that the assistants are operating the imaging equipment, positioning tubes and placing plates during imagining [sic]. Complainant explained that the assistants are also positioning patients for surgery.

Complainant stated that they have also asked to make the identify [sic] checks of patients. Complainant stated that they are asking patient's their name, date of birth and checking the imagery that would be done. Complainant stated this would normally be carried out by a qualified professional.

Complainant explained that he has witnessed patient's [sic] that have not been identified correctly and as a result have had the wrong imagery taken.

Complainant stated that Licenced [sic] professional should be in charge of the equipment and assistances [sic] are often unsupervised.

Complainant explained that the assistance [sic] are bringing people into rooms that are not correctly set up.

Complainant stated that assistants are asking patients to remove splints and moonboots that are there to support fractures. Complainant explained that he does not feel they are qualified to do so.

Complainant stated that assistances [sic] are also providing medical advice. Complainant explained that when asked for example "am I am to weight-bear on the foot" the assistants are responding "yes that shouldn't be a problem.

Complainant is aware of one incident where a patient was entering the room which had automatic doors. The assistant had pressed the button and walked away. Complainant explained that the patient was called and they were a little bit slow, as the patient entered the room the door slammed on the lady. Complainant explained that had the assistant not pressed the button the lady would not have been hurt by the doors. Complainant explained that the assistant was not aware of this and did not take any responsibility.

Complainant explained that rooms are left unsafe to enter with X-ray tubes left in the room on the floor.

Complainant explained that it is not one specific assistant but all of them that are making errors and acting outside of their scope.

Complainant stated that he has a document that outlines what their tasks are. Complainant agreed to send this information to the OHO."

• [163] On 18 December 2017, a referrals officer of the OHO made a written decision to refer that complaint to the Hospital to be dealt with. That decision was made pursuant to s 92(1) of the Health Ombudsman Act 2013 (Qld). Part of the decision was a determination that it was appropriate for the Hospital to manage the complaint. A copy of the decision and the record of the complaint were sent some time later to Ms Dolkens.
• [164] At some stage in 2018, Ms Dolkens received the written complaint document. She did not recall the plaintiff having spoken with her about the content of the complaint prior to her receipt of it.
• [165] Upon receiving it, Ms Dolkens made contact with the HR department at the Hospital to discuss the complaint with them. She gave evidence that it was unusual to receive a notice of a decision from a staff member of the OHO, that is why she approached HR to ask them how she should proceed. She gave evidence that she was advised by HR that it was quite reasonable to engage with the plaintiff to discuss his complaint, and that she could undertake an investigation with the MIAs as to the validity of the complaint, which is what she did.
• [166] It is understandable that someone in the senior administrative position of Ms Dolkens, when confronted with a referral from the OHO of a complaint made to it, would have gone to the HR department of the Hospital for guidance.
• [167] I accept Ms Dolkens's evidence on these issues.
• [168] Within the Hospital at the relevant time, there was an operative Queensland Government Grievance Resolution Human Resource Policy ("the HR Policy").[35] Clause 7.1 of that HR Policy provided that all grievances are to be managed in a way which is open, transparent and fair, and which affords natural justice to all parties to the grievance. It promoted an approach which initially sought for a grievance to be resolved at a local and informal level. Where such a grievance could not be resolved that way, the grievance could then move on to a more formal level.

Thank you for meeting with me to discuss your complaint made to the OHO with me.

I advised you I had met with the MIA's to review the complaint. I have met with their line manager, subsequently, to discuss as well.

The words "acting outside their scope of practice" are not your words.

Point 1: MIA's moving X-ray tubes and placing detectors in the room are not transgressing any part of the RSPP or the radiation safety act.

The ultimate responsibility for the examination lies with the radiographer and MIA's are to work to the direction of the radiographer.

Point 2: We agreed Patient ID checks are the responsibility of all members of the team, including MIA's.

You raised the point that MIA's made the ID check with you in the room and then you have to recheck the patient again. If you are present in the room, next to the MIA and witness the ID check then I would suggest the check has been completed successfully (a similar process occurs in theatres when a time out happens in front of all staff). Otherwise stop the MIA from doing the check so you can complete it.

Point 4: We agreed that if this [is] happening then the radiographer is not being attentive.

Point 6: This happened once. MIA was reprimanded. Duties statement is very clear this is not to happen. I will email all MIA's reminding them of this.

Point 7: This happens across all streams. I will email MIA's to remind them that this is inappropriate and medical questions need to be addressed by the appropriate qualified professionals.

Point 8: Education to be held on the operation of the doors as part of in-service.

Point 9: X-ray tubes left in in-appropriate positions is the responsibility of the radiographer.

Point 10: We agreed that on reviewing the RD of the MIA's, the duties they are being asked to do fall in their scope of practice.

An in-service with MIA's on tube movement, safe tube movement and door operation.

Moving forward I would like to encourage you [to] raise any concerns you may have with myself so they can be immediately resolved.

Acting Service Director Diagnostic Services | Medical Imaging"

• [187] It can be seen that that email was drafted in polite terms, with a response to each point which had been raised in the OHO complaint document. On the plaintiff's part, his evidence was that this email does not accurately reflect what went on at the meeting with Ms Dolkens. Ms Dolkens gave evidence that it is an accurate reflection of what occurred at the meeting to the extent it dealt with the OHO complaint.
• [188] Ms Dolkens gave evidence that after that email was sent that she did not receive a response from the plaintiff. I accept this evidence from Ms Dolkens. The plaintiff did not suggest otherwise in his evidence.
• [189] What the above evidence demonstrates is that, having received a complaint, Ms Dolkens (with input from HR) formulated a procedure to deal with the complaint. As part of the procedure, Ms Dolkens treated the plaintiff's identity as the complainant in a confidential way. The procedure provided procedural fairness both to the plaintiff and to the MIAs the subject of the complaint. This then led to Ms Dolkens making a determination on the subject matter of the complaint and formulating an action plan as a result of the determination. Ms Dolkens documented the determination and communicated it to the plaintiff. At least on the face of the communication, she provided the plaintiff with a further opportunity to discuss the matter.
• [190] Such a course of conduct by Ms Dolkens was an appropriate one to have engaged in in respect to a confidential complaint made by somebody within her Department, concerning work being undertaken by a number of other persons in the same Department.

(c) The fifth event and sixth event, being the alleged Hayley Morgan and Amanda Sutherland conduct

• [191] I will now deal with the seven event categories of the alleged inappropriate conduct that I have previously identified. I will do so under separate sub-headings. As can be seen, this sub-heading will deal with the fifth event and sixth event. I am going to deal with the seven event categories in a different order to the order in which they appeared in the statement of claim. The reason for this resequencing of the order of the event categories is to deal first with certain allegations in the pleading which were not supported by the evidence of the plaintiff. The findings for these particular event categories are relevant to reliability questions in the later event categories. Having made these initial observations, I turn to the specific event categories dealt with under this sub-heading.
• [192] As previously summarised, the fifth event category and sixth event category introduce allegations against Ms Amanda Sutherland and Ms Hayley Morgan. They were MIAs. It is alleged that between April 2018 and August 2018, on occasions so regular that it was not possible to particularise, each of them engaged in conduct said to be:

(a) ignoring, excluding and alienating the plaintiff, including by directly refusing to greet him, speak to him or follow his directions; and

(b) spreading false rumours about the plaintiff.

• [193] The plaintiff, in his evidence-in-chief, gave very little evidence which would support the allegations which had been made against either of those persons. In relation to Ms Hayley Morgan, the plaintiff described that in 2017 he had a good working relationship with her, they would have lunches together and she would sometimes communicate with him outside of work. At its highest, he said that after the OHO complaint their friendship and working relationship deteriorated. However, he identified that Ms Morgan always remained professional at work and still did anything he asked. He said in evidence that she never engaged in any practices that endangered anybody or did anything wrong. The plaintiff said that it was more that their friendship seemed to deteriorate to a point where she would very seldom ever talk to him.
• [194] In relation to Ms Amanda Sutherland, he described her in 2017 as being always a pleasure to work with, very polite and very helpful. He said he considered her a friend. The highest that he could put it for the period following the OHO complaint, is that he just felt that she approached him differently. Objection was taken to this non-specific perception evidence. After a number of other attempts to adduce specific evidence in support of the allegations, the plaintiff eventually gave evidence that in the period after the OHO complaint in April 2018, that "Mandy" was always very polite and professional and that he really couldn't say anything negative about her. He said that if Mandy chose not to talk to him on a personal level, he guessed that he felt that this would be her choice. He further stated that he felt that she was unsure about the OHO complaint. He had said that in 2018 she was more formal with him and the conversation was more directly related to work-related discussions, whereas in 2017 it was more personal conversation.
• [195] He did identify that at some stage she briefly mentioned the OHO complaint to him.
• [196] It is relevant to note that under cross-examination, the only alleged inappropriate conduct that the plaintiff was able to identify in respect of these two MIAs was that Ms Morgan had, on occasions after 2018, not greeted him or would not speak to him.
• [197] Otherwise, the plaintiff was taken through the allegations made against these two MIAs in paragraph [14] of the statement of claim and in respect of each allegation, he accepted that the two MIAs had not engaged in the conduct which had been pleaded.

(d) Seventh event - general conduct alleged against Ms Rebecca Green between April 2018 and August 2018

• [212] Under this sub-heading I will deal with the findings as they relate to the allegations of general inappropriate conduct of Ms Green between April 2018 and August 2018. Ms Green was the plaintiff's line manager in the sonography section of the Department. As set out above, it is alleged that during the relevant period:

(a) she ignored and isolated the plaintiff, including by refusing to greet the plaintiff while greeting others in the room;

(b) spoke to the plaintiff in a manner which was rude and abrupt and walked away from the plaintiff while he was talking to her; and

(c) rostered the plaintiff with a heavy workload.

• [213] I commence the discussion of this event by identifying that in final oral submissions, counsel for the plaintiff effectively conceded that the evidence of the plaintiff against Ms Green did not come up for proof. He said, inter alia:

"And I would frankly concede that the evidence in relation to Rebecca Green was difficult to sit within the confines of what appears in paragraph 15..."

• [214] I asked for clarification in relation to this statement. In that respect, I inquired, "Are you making a concession there?" Counsel stated, "I'm just saying that the evidence in relation to Ms Green does not really come up to proof of the allegations as made.[37]" I inquired whether that was the allegations as made in paragraph [15] of the statement of claim. I was informed that this was the case.[38] Counsel again referred to this as a concession later in the oral submissions.[39] It was clear from this last occasion that this was a full concession.
• [215] Despite the concession, the evidence should still be examined.
• [216] The plaintiff commenced his evidence in respect of Ms Green with a focus on 2017. He described the relationship as being a strange one. He said that in early 2017 some days she would be quite friendly and at other times he claimed she would ignore him and not respond to his questions. He said that sometimes she would speak abruptly to him but generally after a few days would be on talking terms again. He said that this impacted his ability to perform as a radiographer and sonographer because he felt like he was not able to communicate well with her. He said after the OHO complaint his relationship with Ms Green deteriorated and stated that she would not talk to him for many months, ignored him and if she spoke to him, he felt it was aggressive and abrupt and it was not a friendly professional relationship.
• [217] The plaintiff said that the OHO complaint was never discussed between himself and Ms Green.
• [218] In relation to the scheduling of his work, that matter was examined in cross-examination with the plaintiff. The plaintiff claimed that his worklist was being rostered with heavier work and a full work list whilst other sonographers in the department - who he said were friendlier with Ms Green - were not rostered full lists and were given the examinations which he considered to be quick and easy.
• [219] Under cross-examination, he accepted that what he was being rostered with was a workload consistent with the period for which he was being paid to work. That is, he was being rostered with a workload for four hours, in circumstances where he was being paid for four hours work.
• [220] The plaintiff's real complaint was a suggested comparison of the quality of his workload compared to that of other people within that work period. By quality, I mean the complaint that others got the quicker, easier patient tasks. When cross-examined, the plaintiff was not able to identify any schedule on any particular day where this had happened, and he called nobody else to corroborate that this had happened. He accepted he could produce no written record of any of the alleged over-rostering he was describing.

"...I disagree, because I guess I have pride in the job I do and to the team under me. And I have always thought we've had a good, friendly team, a nice culture within the team - helping and assisting each other. So I'm - I'm just a bit shocked by that comment, to be honest, because I always put the team before me and my job. Like, I answer to higher up, yes, but I'm always for the team around on a daily basis, so ---

And what support was provided to the sonographers?--- They always knew the door was open, they always knew they can come and have a chat if they do - if they have anything on their mind, whether it was - some staff come with personal issues. Some had work-related issues. Some had training issues. Generally, they knew they could come and get support. Or if I could not give what they needed, I could direct them in the right direction to get that support. If they needed to talk to someone independently, they could.

And do you have any recollection of Mr Kemp complaining to you about lack of support for him?--- No."

• [224] I found Ms Green to be a reliable witness. Her denials of the allegations made against her had the benefit of the contemporaneous documents I have previously summarised in the pre-11 April 2018 period. The six-monthly Professional Development Plan reviews and her written notes of interactions in 2017 with the plaintiff corroborate that she was somebody who was interacting appropriately with the plaintiff. They record, for instance, her asking, on repeated occasions, if the plaintiff was alright. Those inquiries were made after the porter incident in May 2017. They stand in stark contrast to the statements made against her by the plaintiff in the pleading, in evidence, and in the 26 August 2018 letter to WorkCover.
• [225] To the extent that the plaintiff gave some generalised evidence consistent with his pleaded case, I do not accept that evidence. I prefer the evidence of Ms Green for the following reasons.
• [226] First, the corroboration she has of her appropriate interactions with the plaintiff as recorded in the documents referred to.
• [227] Secondly, a number of the MIAs gave evidence of their observations as to the relationship between the plaintiff and Ms Green:

(a) Mr Adams described his view as follows: "I saw her provide her usual level of leadership: clear and direct instruction given to all sonographers."

(b) Ms Morgan gave evidence that she had observed interactions between the plaintiff and Ms Green and said that she had never observed anything negative in the interactions between the plaintiff and Ms Green.

(c) Ms Sutherland gave evidence that she saw the plaintiff interacting with Ms Green such as, perhaps, in a corridor if they were passing each other, having a chat, perhaps chatting about the next patient or something like that, she described the observed interactions as cordial and in line with the work environment.

• [228] Ms De Souza, an MIA called on behalf of the plaintiff, gave evidence that after the meeting she attended on the OHO complaint, she did observe certain unnamed MIAs ignoring the plaintiff when he spoke to them, and there being a change in their behaviour, as in ignoring or staying away from him. She agreed that it was only the unnamed MIAs that she observed a change of behaviour in. That is, she did not assert that she saw any change in behaviour by Ms Green.
• [229] None of the MIAs gave any evidence which would support the plaintiff's allegations against Ms Green. What evidence they could give was consistent with her account of having acted in a professional and proper way towards the plaintiff.
• [230] I find that the plaintiff has not made out the allegations of general inappropriate conduct pleaded against Ms Green.
• [231] I find that Ms Green conducted herself professionally and appropriately at all times in relation to the defendant. In making these findings, I also reject the allegation that Ms Green unfairly rostered the plaintiff with a heavy workload.

(e) Second event - the specific meeting between Ms Dolkens and the plaintiff on

• [232] This sub-heading deals with the second event. This involves allegations made by the plaintiff concerning the meeting with Ms Dolkens held on or about 22 May 2018, after the OHO complaint had been referred to Ms Dolkens.
• [233] In that respect, the plaintiff alleged in the pleading that in the meeting, Ms Dolkens:

(a) adopted a manner towards the plaintiff which was aggressive, dismissive, argumentative, belittling and intimidating;

(b) engaged in behaviour which included raising her voice, standing close to the plaintiff and pointing her finger to the plaintiff's face;

(c) questioned the plaintiff in an accusatory manner as to why he had made the complaint;

(d) told the plaintiff that he had raised his concerns inappropriately by going to the OHO;

(e) asked the plaintiff whether he had something personal against the MIAs;

(f) in response to a query from the plaintiff, advised the plaintiff that the only person in the Department who were aware that he had made a complaint were herself and Mr Bennetts;

(g) in response to the plaintiff advising her that it was clear to him that other people in the Department were aware he had made the complaint, denied that she was the source of that information.

• [234] The plaintiff gave evidence in respect of this meeting. That evidence commenced with a reference to the 22 May 2018 email that Ms Dolkens sent him after the meeting. The plaintiff rejected that that email accurately reflected what had occurred at the meeting.
• [235] The plaintiff gave evidence that Ms Dolkens invited him into her office and that she was very upset. Again, like the meeting in the previous year, he said her face was very red and she was very angry, and she asked him to sit down and she then slammed the door behind herself. He said that Ms Dolkens then proceeded to yell at him in close proximity and asked him, "Who the hell did I think I was, have I got something - do I have a problem with the staff in the department?". The plaintiff said that she said that all of the problems were centred around him and then she said how dare he make a complaint to the OHO and bypass her position.
• [236] The plaintiff then stated that Ms Dolkens told him that this was going to have very serious consequences for the plaintiff and his career. He said that they had previously discussed his ambitions of becoming upskilled or finding a higher level position. He said that she told him at the meeting to forget about that as long as she had anything to do with it and she would not allow it to happen.
• [237] The plaintiff said that the conversation went along those lines for at least five minutes, and then Ms Dolkens finally started bringing up, in point form, things that she felt had been brought up in the complaint. The plaintiff stated that Ms Dolkens would ask the question, and the plaintiff was not able to answer the question. He said that he would be in mid-sentence most of the time trying to answer the question and she would cut him off and would ask the next question.
• [238] The plaintiff gave evidence about the email of 22 May 2018. Point 6 in the email concerned the removal of a splint from a patient. The plaintiff pointed out that the email said, "We agree..." at the start of the written comment on that point. The plaintiff said, "I don't believe in many of those points that we [did][40] agree. We didn't really agree on anything. Anything I tried to bring up, any issue, any problem, she didn't make any agreeance with me. She just continued to dismiss what I had to say." He then moved on to point 7 and said that he had brought a similar point to her attention before that meeting and there was one particular MIA who had been giving medical advice to patients. He said that there was no agreement on the issue. The plaintiff said that Ms Dolkens told him that he was a liar and that she had not heard anything about it. He then went to point 8, which dealt with the closing of doors. He was asked whether there was agreement about the doors. He said that he explained to Ms Dolkens that he had witnessed, as other radiographers had witnessed, patients being jammed in doors. He then said, "I didn't feel like, during the conversation, that she ever believed me or ever acknowledged that it was happening, but it says here that its suggesting that there's to be something done about it, so a suggestion that she believes what I said."

"Did - how did Mr Kemp conduct himself in that meeting?‑‑‑It was a civil meeting. We went through everything. At times, he did become a little bit confused. He did state that one of the statements around scope of practice was a statement he had not made to the OHO. But other than that, we went through everything. We agreed on - on - on certain parts of the complaint or certain outcomes from the complaint and it was as civil - a civil conversation which I followed up with an email.

How did you conduct yourself towards him?‑‑‑Civilly. Calm and, as I am now.

Okay. And did you ever discuss with Mr Kemp his views about having MIAs?‑‑‑Not directly.

• [246] Ms Dolkens stated that after the meeting she sent the email. Ms Dolkens gave evidence that the plaintiff did not respond to this email.
• [247] In addition, Ms Dolkens gave evidence that at the meeting on 22 May 2018, she discussed with the plaintiff other matters unrelated to the OHO complaint. Those discussions concerned the plaintiff's health and his ASAR[43] accreditation. She explained that all sonographers had to be accredited when working for Queensland Health. She could not recall if they reached any conclusion about these additional matters, but identified that on 22 May 2018 she sent a separate email to the plaintiff about them. That separate email had as its subject "Sick Leave and ASAR". It provided as follows:

We discussed your sick leave and continuing health concerns. I raised the possibility of part time hours to assist you. You are seeing your Doctor this week and we will review changes to your working arrangements if necessary.

ASAR accreditation is now mandatory for all sonographers employed with QH. You are happy to apply for accreditation again and we will assist you wherever we can. ASARS annual fees are covered by the department.

• [248] It can be seen that the email is also drafted in polite and civil terms.
• [249] In relation to the role of the MIAs, Ms Dolkens stated that she did not specifically recall the plaintiff speaking to her about medical imaging assistants prior to the complaint.
• [250] It was then put to her that at some time she had told the plaintiff that he wasn't being truthful. Her response to this was, "Absolutely not."
• [251] It was suggested to Ms Dolkens that in 2018, on some unidentified occasion, that the plaintiff had told her about MIAs not positioning patients correctly. She said that she did not have a recollection of that having been raised. It was put to her that after the RiskMan report meeting in May 2017, her interactions with the plaintiff changed, in the sense that her actions could be described as "reprisal". She rejected that proposition.
• [252] Ms Dolkens spoke of her surprise in having received an OHO complaint, because she had not received one before.
• [253] In response to a series of questions in cross-examination, she identified that at no stage did anybody, including the plaintiff, make her aware that any of the MIAs knew that the plaintiff had made the OHO complaint.
• [254] In relation to the 22 May 2018 meeting, Ms Dolkens was cross-examined in-depth about its content. She rejected that the email she sent on 22 May 2018 did not accurately reflect what occurred in the meeting. As the cross-examiner went through the evidence which the plaintiff had given, Ms Dolkens rejected each of the allegations of inappropriate conduct alleged against her in respect of this meeting. There were some benign matters which she did concede, for example, she accepted that she would have offered the plaintiff a seat.
• [255] Ms Dolkens was asked about her raising with the plaintiff the issue about going to the OHO rather than coming and speaking to her. She responded to this question in the following terms, "I raised it in the context that the OHO referred it back to us to be resolved at a local level."
• [256] Ms Dolkens gave evidence that the meeting went for longer than five minutes. She said this was because the OHO complaint was quite lengthy.
• [257] Ms Dolkens stated that on some issues there was a lot of discussion. When answering on this topic, she rejected the suggestion that the plaintiff was not able to complete his answers to questions that Ms Dolkens had asked about in respect of the points in the complaint.

"He says that you didn't agree with him when he indicated that it was ultimately the responsibility of the radiographer to check the ID ‑ ‑ ‑?‑‑‑Sorry, can you ‑ ‑ ‑

‑ ‑ ‑ of the patient?‑‑‑ ‑ ‑ ‑ ask that question again?

Sure. He says that you didn't - did not agree with him when he indicated to you, in talking about that issue about identity, that it was ultimately the responsibility of the radiographer?‑‑‑I raised that with Jamie, that it was ultimately the responsibility of the radiographer to ensure the correct patient was identified.

He certainly talked to you about an MIA removing a splint - an arm splint from a patient?‑‑‑That's correct. He had raised that in the OHO.

And he talked to you about that - the injury that flowed from the fact that the splint had been removed?‑‑‑I - that was not raised. I don't recall us discussing an injury that resulted from a splint being removed.

Do you recall whether or not that patient made a complaint about ‑ ‑ ‑?‑‑‑I don't recall.

All right. Mr Kemp says that the discussion that you and he had in the course of that meeting was one where there was no agreement. Do you think that that's a fair reflection of the way the discussion went or not?‑‑‑No, I think we did come to some agreement.

Not on all things though?‑‑‑Potentially not on all things, but on - on a number of points.

So he says that there was no agreement reached between yourself and him in the course of that meeting?‑‑‑No, I believe there was some agreement reached.

And is that the reason why you followed the meeting up with correspondence, to give him an opportunity to comment about whether or not it was a proper reflection?‑‑‑Yes.

So you had a concern about the way he might have perceived what occurred in the meeting?‑‑‑No, we normally follow-up meetings like that with a follow-up email discussing what was - detailing what was discussed.

But if there was an issue, that would be - you would expect that to be raised with you?‑‑‑Correct."

• [259] The evidence given by each of the parties as to what happened at this meeting was, in most material respects, directly inconsistent with the other.
• [260] I prefer the evidence of Ms Dolkens as to what occurred in this meeting. My reasoning is as follows.
• [261] First, Ms Dolkens was in a senior administrative position, and had been forwarded a complaint from the OHO. It was her responsibility to investigate that complaint. Her first action was to go to the HR department of the Hospital to seek guidance. She then formulated and implemented a procedure to deal with the complaint. This was a fair procedure, and it involved:

(a) advising the plaintiff in writing of her receipt of the OHO complaint, and giving him the opportunity to provide her with further information, but otherwise informing him that she was going to carry out an investigation of the complaint and give him a written resolution within a period of time;

(b) then notifying the MIAs, as a general body, at a short meeting that there had been a complaint to the OHO, and that she was going to see each of them individually in relation to it;

(c) implementing the process of seeing each individual MIA in relation to the content of the complaint and receiving their responses;

(d) having a meeting with the plaintiff, after she had the responses of the MIAs, and going through each of the items in the complaint with him, and then identifying her intended course of action;

(e) providing a written document in the form of an email, setting out in a brief form their discussions that she and the plaintiff had in relation to each item of the complaint, and the ultimate resolution that she had come to, together with the action that she intended to undertake;

(f) at all stages of the process, she maintained (and Mr Bennetts maintained) the confidentiality of the identity of the plaintiff as the complainant in the OHO complaint.

• [262] This procedure was consistent with the HR Policy and allowed procedural fairness to both the complainant and also to the persons who were the subject of the complaint. Having taken advice from HR and formulated and implemented a procedure, it seems illogical and irrational that Ms Dolkens would have polluted the procedure by acting at the meeting in the extraordinary way attributed to her by the plaintiff.
• [263] The plaintiff's version of what occurred in the individual meeting between himself and Ms Dolkens is that, amongst other things, she purportedly, behind closed doors, in a rage, abused him for five minutes, called him a liar, and then would not let him finish sentences or explain his grievances. That is an unlikely scenario for somebody such as Ms Dolkens, who had carefully put in place a fair procedure to be followed after having consulted with the HR department.
• [264] Secondly, the 'Jekyll and Hyde' scenario described by the plaintiff is at odds with the observations made by the various other witnesses of Ms Dolkens generally and of general interactions they observed between her and the plaintiff within the Department's environs. Nobody gave any evidence which would suggest that Ms Dolkens had, on any other occasion, engaged in such inappropriate conduct or had acted in such an unprofessional, angry or abusive way to the plaintiff, or any other staff members. This was not a case where propensity evidence was adduced in relation to a course of conduct. The general observations were to the effect that she was civil and polite in her dealings with others in the Department.
• [265] Thirdly, for the plaintiff's version to be accepted, it would have to be accepted that Ms Dolkens had drafted the 22 May 2018 email in a deliberately false way. The plaintiff could have, but did not respond to the email by challenging its content. Nor did he complain to a higher superior within the Hospital about Ms Dolkens's alleged conduct. A complaint to a higher superior was directly contemplated by the HR Policy. The email was a contemporaneous record of the meeting which went entirely unchallenged. The second email sent that day also suggested that the meeting had dealt with other matters such as the health of the plaintiff and rostering. Such additional matters would have had little room to be discussed in the type of abusive environment contended for by the plaintiff.

(f) Third event - general inappropriate conduct alleged against Ms Dolkens between April 2018 and August 2018

• [272] This sub-heading deals with the third event. This involves general allegations made by the plaintiff of inappropriate conduct by Ms Dolkens between April 2018 and August 2018. That conduct can be summarised as follows:

(a) repeated instances of Ms Dolkens allegedly:

(i) using abusive and threatening language and demeanour towards the plaintiff;

(ii) making inappropriate comments in passing to the plaintiff; and

(iii) staring at the plaintiff.

(b) refusing the plaintiff's request for upskilling and promotional opportunities, including by directly asserting that she would not let him advance; and

(c) excluding the plaintiff from staff meetings and from information about changes within the Department.

• [273] The plaintiff gave evidence that after the porter incident and associated meeting with Ms Dolkens in May 2017, there had been stalking like behaviour by Ms Dolkens. He also gave evidence that Ms Dolkens became very confrontational and very angry towards him. The plaintiff said that Ms Dolkens would never greet him or say hello if it were just the two of them. However, if there was a group of people he said Ms Dolkens would make a point of her saying hello to him. This conduct was all said to be prior to 11 April 2018, that is, Ms Dolkens was already allegedly engaging in what the plaintiff said was inappropriate conduct.
• [274] The plaintiff gave evidence that during the second half of 2017 he was not receiving proper support in either the radiography or sonography sections of the Department. He said that Mr Bennetts had effectively not spoken to him for years, and Ms Green did not want to talk to him about questions of specific procedures and policies. He described Ms Green as very angry and would often just, sort of, bark at him. The plaintiff said that he then raised issues directly with Ms Dolkens. He said Ms Dolkens at this time was aggressive, and was not communicating well to him, and was calling him a liar and did not believe anything he had to say. The plaintiff said Ms Dolkens would not engage in a professional proper conversation about problems he might be experiencing at work.
• [275] The plaintiff gave evidence that in the period between the 22 May 2018 meeting and his writing the 26 August 2018 letter, Ms Dolkens and Mr Bennetts constantly monitored him. In respect of Ms Dolkens, he described her entering his workplace, standing in the corner and staring at him for several minutes at a time. The plaintiff said she would at these times look at her watch. He said it appeared that she was writing something down and then she would turn around and leave. Ms Dolkens stared at him across a large room full of people and suggested that Ms De Souza had witnessed incidents of this type of staring.
• [276] The plaintiff also gave evidence that he was not given an opportunity to upskill or be promoted to a higher level, and he was never offered training.
• [277] At a time after 11 April 2018, the plaintiff said he had requested of Ms Dolkens not to have him rostered with Mr Adams. At the time of the request, he said that he told Ms Dolkens of Mr Adams engaging in general inappropriate behaviour similar to that identified in the category. The plaintiff said that this request was not complied with by Ms Dolkens.

"Now, did you make any applications for promotion?‑‑‑No.

So what were the promotion applications - promotional opportunities that were refused?‑‑‑What do you mean?

Well, it's your allegation that in this period, April to August '18, Ms Dolkens engaged in offending behaviour which included refusing your request for upskilling and promotional opportunities. So I'm asking you, what promotions did you apply for in that period?‑‑‑I didn't apply for any promotions in that period.

So she didn't refuse you any promotional opportunities?‑‑‑If there was a promotion available or a position advertised following that conversation with Jennifer Dolkens, I would never have even applied for it.

Well, that's a different thing, Mr Kemp. You weren't refused. You made no applications, at all, correct? In the period we're talking about?‑‑‑That's correct.

And, in that period, did you make any requests for upskilling?‑‑‑No.

So, again, she didn't refuse any requests for upskilling?‑‑‑The request was made to her in a discussion in - in our conversation.

Sorry? Which conversation are we talking about?‑‑‑In the meeting with her. There's several conversations I had with Ms Dolkens.

Well, just at the moment, I'm focusing on your pleaded allegation which, presumably, is based on information you gave your lawyers that in the period April to August '18, she refuse your requests for upskilling. And I'm just trying to find out what requests you made in that period?‑‑‑I didn't make a written application.

Well, did you make any requests for upskilling?‑‑‑The first request I made to upskill or discuss any possibility for a higher level was in mid-2017."

• [288] After this exchange, the plaintiff gave evidence that in the meeting on 22 May 2018, Ms Dolkens had said to him, in effect, she would ensure that he could never advance. I have already rejected that evidence under a prior sub-heading.
• [289] In cross-examination, in the context of allegations made about conduct in 2017, the plaintiff referred to the fact that a vacancy for a higher HP5 level sonographer position had come up when he was at a HP4 level. He accepted that because of the restriction that had been put on him returning to work, namely that he could not do more than half a day in sonography, there was a big problem for him upskilling in that area and it would have been a legitimate reason for him not to be able to obtain the sonography position.[46] This exchange did not suggest that the plaintiff had actually applied for that position in 2017.
• [290] The plaintiff then acknowledged that in the period April 2018 to August 2018, no vacancies came up, either for a higher sonographer position or a higher radiographer position.[47]
• [291] Accordingly, there were no higher level positions to apply for in the pleaded period and, as a matter of fact, the plaintiff had made no application for a higher level position in the same period. These were again pleaded allegations which had no objective factual bases.
• [292] In relation to the allegation that Ms Dolkens had excluded him in April 2018 to August 2018 from staff meetings and from information about changes within the Department, Ms Dolkens, Ms Green and Mr Bennetts gave evidence to the effect that the plaintiff had never been excluded from any staff meetings.
• [293] The plaintiff, in his evidence-in-chief, had said that he would be scheduled for work at the times when the staff meetings would take place and that by this mechanism he was excluded. It was explained by Ms Green that if a person was rostered on they could still attend staff meetings. In the context of the sonography section, she indicated that sonography scans did not occur at the time the meetings were held. Mr Bennetts said that meetings were not compulsory, and if the plaintiff was not attending meetings that was a result of the plaintiff's choice.
• [294] I accept the evidence of Ms Dolkens, Ms Green and Mr Bennetts on this issue.

(g) First event - specific allegation against Mr Adams in relation to a confrontation said to have occurred a few days after 11 April 2018

• [301] This sub-heading deals with the alleged inappropriate conduct during a purported confrontation between Mr Adams and the plaintiff, said to have occurred a few days after 11 April 2018.
• [302] The pleaded allegation is that the plaintiff was working in a radiological examination room and Mr Adams had come into the room. It is then alleged that:

(a) Mr Adams stood close to the plaintiff, used a raised voice in a manner which was abusive, intimidating and threatening; and

(b) during the confrontation, used words or words to a similar effect as the abusive profanities which I have previously summarised above in the pleading section.

• [303] In the subsequent 26 August 2018 letter from the plaintiff to WorkCover, this alleged occurrence was summarised relatively briefly as follows:

"...in the following days, I was confronted and accused by a medical imaging assistant that I have made a complaint about him. He raised his voice and used inappropriate language towards me."

• [304] In his evidence-in-chief, the plaintiff gave evidence of the particular incident. He said it occurred a few days after 11 April 2018. The plaintiff says he was in the orthopaedic outpatients section of the Hospital, in an administrative room. He stated he was entering patient details into the computer at the time. The plaintiff said that a young first-year university student, only 18 or 19 years of age, was present, that they had just finished a case and were halfway through the plaintiff's list when Mr Adams burst through the door. The plaintiff said Mr Adams, "like, almost kicked the door in." The plaintiff then said that Mr Adams charged right up to him within a metre from where he was standing and the plaintiff could see that Mr Adams was very upset and agitated.
• [305] The plaintiff said that Mr Adams was clenching his fists by his side and Mr Adams's moves were very quick. He stated that Mr Adams was a big guy who was taller and heavier than the plaintiff. The plaintiff said the following conversation then occurred, "Jamie, I know you made a complaint about me to the Health Ombudsman. I know you did, you fucking cunt. You know what you did. Who the fuck do you think you are, trying to tell me how to do my job? Fuck you, you fucking wanker, Jenni has got our back. She has told us she is going to support the MIAs, so you can go fuck yourself." The plaintiff gave evidence that Mr Adams said a series of that type of thing again to him and then said, "You have no idea why I was discharged from the Navy. You have no fucking idea what I am capable of, you fucking cunt." The plaintiff then said Mr Adams stormed out of the room. He said that Mr Adams's fists had been clenched the whole time, mostly down by his side, but that he waved his arms around a few times, just around in front of him and beside him.
• [306] The plaintiff said that there was no patient in the room, but the student had become very upset.
• [307] The plaintiff said that he felt humiliated in front of the student and betrayed that management had disclosed his identity to Mr Adams and, that Mr Adams had been told or had the impression that the complaint that the plaintiff had made was specifically about him.
• [308] The plaintiff said that he felt very much threatened in that he knew Mr Adams had a military past, but he had no knowledge of him being discharged. He said that Mr Adams had previously talked about things that had happened to people in the military who do not get along with others. He also said that he felt that he was embarrassed that Mr Adams would talk to him like that in front of a student. He then said senior health care professionals had responsibilities to conduct themselves in a highly professional manner. The plaintiff said that he felt humiliated and betrayed by Ms Dolkens, as she did not have the right to disclose his identity to staff members that he had to work side-by-side with.

(a) that the OHO complaint upset him because it impacted on his perception of his role as an MIA;

(b) that the complaint was something that, insofar as Ms Dolkens talked about it with Mr Adams, it impacted on the way that Mr Adams understood his role as an MIA;

(c) that it had upset Mr Adams that a complaint had been made about the MIAs;

(d) that the complaint was something that caused him to direct anger towards the plaintiff; and

(e) that the way which Mr Adams felt about this complaint overcame the way in which he was undertaking his role and caused him to go and seek out the plaintiff.

• [319] If the denials to the propositions in sub-paragraph [313](a) to (c) above are meant to support that Mr Adams had no negative feeling from the OHO complaint having been made, on the balance of probability, I do not accept that this was likely. Common sense would suggest that each of the MIAs would have had some type of negative feeling from the complaint having been levelled at all the MIAs. By way of example, Ms Morgan described her feelings as being a little bit disheartened, in circumstances where she thought she had a good working relationship with the plaintiff and she thought she had not done anything wrong in her job role.
• [320] The plaintiff gave evidence that the complaint was largely directed to conduct which he attributed to Mr Adams. However, as I have already observed, the complaint as recorded in the OHO telephone complaint document does not name Mr Adams, and in overall effect, was directed at all the MIAs. There were some individual examples given in the OHO complaint, but none of those examples were expressly attributed to specific MIAs. Nor was it suggested to Mr Adams in cross-examination that he understood that the OHO complaint was directed individually against him, as opposed to the MIAs as a group.
• [321] There was some evidence, separate from the plaintiff, which supported that Mr Adams may have been the MIA being referred to in some of the examples in the OHO complaint. These were the taking off of a patient's splint, an automatic door closing on a patient, and the telling of a patient that they could walk on an injured foot, and thereby having given de-facto medical advice.
• [322] Ms Morgan gave evidence that she had heard from a mixture of both other MIAs and radiographers non-complimentary things about Mr Adams, such as the three things referred to above. This was obviously hearsay evidence, but it at least proved that there had been some prior gossip about these matters with Mr Adams identified.
• [323] It was then separately suggested to Ms Morgan that it had also been mentioned to her about Mr Adams's violence or his tendency for violence. She rejected that suggestion by responding, "No, I don't know about that." No other witness gave any evidence of having observed or known about Mr Adams being violent or having a tendency for violence.
• [324] On the balance of probabilities, it is more likely than not that Mr Adams appreciated that some of the examples given in the OHO complaint were directed against conduct he had allegedly engaged in. This would have contributed to some negative feelings arising from the complaint.

(h) Fourth event - general offending behaviour alleged against Mr Adams for the period April 2018 to August 2018

• [334] This sub-heading concerns general allegations of inappropriate conduct made against Mr Adams for the period April 2018 to August 2018. Those allegations were as follows:

(a) ignoring, excluding, alienating the plaintiff, including by directly refusing to greet him, speak to him, or follow his directions;

(b) spreading false rumours about the plaintiff; and

(c) specifically:

(i) speaking to the plaintiff in a manner which was rude and aggressive;

(ii) directly refusing to follow instructions given to him by the plaintiff;

(iii) making inappropriate comments to the plaintiff in front of patients;

(iv) obstructing the plaintiff from teaching student radiographers;

(v) apparently deliberately undertaking tasks which the plaintiff had identified in the OHO complaint as being inappropriate for MIAs; and

(vi) refusing to cease undertaking tasks included in the OHO complaint when asked to do so by the plaintiff and saying the words to the effect of, "I have the support of Jenny so I can do what I want."

• [335] The plaintiff gave evidence in respect of this period and the generalised conduct alleged against Mr Adams. His evidence included the following.
• [336] The plaintiff said that after the confrontation, Mr Adams became very aggressive and unworkable and he would come into the orthopaedic clinic and swear at the plaintiff constantly. He said it was the same type of words that had been used in the alleged confrontation.
• [337] The plaintiff alleged Mr Adams would walk into the Department saying, "I'm rostered with you, you prick. You fucking arsehole..." and things like that. The plaintiff said Mr Adams would go on for two or three minutes. He said that this had a serious impact on his work. He said that he found that Mr Adams would not take any instruction and told the plaintiff every time if he asked him if he could do something to simply "fuck off". He said Mr Adams stated things to the effect that "we have the total support, Benny's told us what we can do, so you can go fuck yourself." He said that Mr Adams would say these things in front of patients and in front of students. He said that this continued on for a whole week before he found himself in a position where he had to re-approach Ms Dolkens again, which at that time was the last thing that he wanted to do because he felt she would only take it as a complaint and that she would not listen to what he had to say. He said that this was in or about April 2018.
• [338] The plaintiff said that he could not work with Mr Adams and took more sick time off. He said that he asked Ms Dolkens to not roster him with Mr Adams and he said that this request was totally ignored by Ms Dolkens. He said that Mr Adams continued to be rostered in his area, and seemed to come from other areas into his workspace and would often make inappropriate comments towards him.
• [339] The plaintiff said that Mr Adams would never do anything he asked and that he was acting more unsafe than Mr Adams had acted before the OHO complaint. The plaintiff said Mr Adams was brazenly abusing him verbally in front of patients and would deliberately do things he asked him specifically not to do, including positioning patients anatomy, removing splints, all of that type of thing.
• [340] The plaintiff gave an example that if he said to Mr Adams that he did not want a patient in the room yet because the X-ray tube had not been put away safely, Mr Adams would go instantly through the room, open the doors and bring a patient into the unsafe room, where the plaintiff said there would be equipment lying on the floor, X-ray tubes positioned in the middle of the room, tripping hazards, falling hazards, bumping head hazards. He said that Mr Adams would instruct the patient into the wrong position.

(i) Findings on the source of the MIAs suspicion that the plaintiff was the complainant

• [350] The plaintiff has asked for a specific finding that Ms Dolkens or Mr Bennetts disclosed the identity of the plaintiff as the complainant in the OHO complaint to others in the Department. I accept that this is an important issue in this proceeding. I have already stated earlier in these reasons my finding that neither person disclosed the identity of the complainant to the other members of the Department. I set out below the basis of this finding.
• [351] First, is the fact that Ms Dolkens denied that she ever disclosed the plaintiff's identity as the complainant to anybody within the Department other than Mr Bennetts. Mr Bennetts was the line manager of the MIAs radiography section of the Department. Mr Bennetts denied that he had ever disclosed the plaintiffs identity as the complainant to any other person within the Department. There was no other direct evidence that Ms Dolkens or Mr Bennetts disclosed the identity of the plaintiff as the complainant to anyone else in Department. I have previously found Ms Dolkens a reliable witness. There was nothing in the evidence at large which pointed to Mr Bennetts being anything other than a reliable witness.
• [352] Secondly, I reject the contention put forward on behalf of the plaintiff that such a disclosure by one or both of Ms Dolkens and Mr Bennetts should be inferred from the fact that there was a level of suspicion or belief held by the MIAs that the plaintiff was the complainant.
• [353] I reject that contention on the following bases.
• [354] There was no direct evidence of the MIA's knowing as a fact that the plaintiff was the complainant. Mr Adams, Ms Morgan and Ms Sutherland gave evidence that they had levels of suspicion that the plaintiff may have been the complainant, but no one ever told them it was him. The highest the evidence rose on this issue was evidence of Ms De Souza, who said Mr Adams and another MIA, a Mr Soren Zukic, had told her, "Jamie's made a complaint about one of us." That evidence does not establish that those two MIAs had been told this by Ms Dolkens or Mr Bennetts. It is equally consistent with the statement reflecting their beliefs reached on other grounds.
• [355] There were obvious, valid explanations for why persons within the MIA group would have suspected that the plaintiff was the complainant.
• [356] Ms Morgan gave evidence of why she formed a suspicion that the plaintiff was possibly the complainant. She said that issues raised in the OHO complaint had been previously spoken about by the plaintiff with her. In other words, it was the very content of the complaint which raised her suspicions. As a result, she thought the plaintiff may have made the complaint. She made the point in evidence that she did not know the plaintiff made the complaint.

"I'm going to suggest to you that, prior to the meeting where all of the MIAs were in attendance with Ms Dolkens and Mr Bennetts?‑‑‑Yes.

That the MIAs talked about the fact that a complaint had been made?‑‑‑Yep.

And they talked also about the author of that complaint?‑‑‑Mmm.

And you knew then, going into the meeting, that it was Mr Kemp who made the complaint?‑‑‑Potentially, yes. Because he had been rather vocal about the situations that had occurred under his watch.

Well, I'm not talking about him being vocal. I'm talking about what the other MIAs said about the author of the complaint?‑‑‑Just that they were disappointed that that complaint had been made. Like, it's a very - to us, our understanding was, like, God, like, that's a very, like, to go right up to the Health Ombudsman, like, we didn't, you know.

But it was also known amongst the MIAs that Mr Kemp had made the complaint prior to that meeting, wasn't it?‑‑‑Potentially, yes because of what ‑ ‑ ‑

Well, not just potentially, but they knew?‑‑‑Well, yeah. And, again, that was from the situations he had been discussing.

Well, you never discussed with the other MIAs, did you, about why they thought Mr Kemp had made the complaint, did you?‑‑‑Sorry, can you repeat?

You never discussed with the MIAs, the other MIAs ‑ ‑ ‑?‑‑‑Yep.

‑ ‑ ‑ about why Mr Kemp had made the complaint?‑‑‑No."

• [375] The evidence given in that passage is itself confusing.
• [376] On one view, it may be seen as Ms Morgan saying there was MIA discussion before the first meeting to the effect that the plaintiff was the complainant. Another view is that she was awkwardly trying to explain that she believed that people held suspicions that the plaintiff may have been the complainant based on the plaintiff's own prior vocal complaints he had made. On this second view, Ms Morgan was not really being careful as to the timing of the forming of the suspicions.
• [377] Of the two interpretations, I prefer the second. I found that Ms Morgan was not being careful with the timing of events. Ms Morgan was, in a sense, trying to be over helpful in her answers without being careful as to the timing she was apparently agreeing to. Her ready willingness to agree to an incorrect timeframe was illustrated immediately after the passage set out above. On the issue of when she spoke to the plaintiff about her being disheartened, the following evidence was given[55]:

"In relation to the period of time involving your one-on-one meeting and then - I'm sorry, the joint meeting with Mr Bennetts and Ms Dolkens and the other MIAs and then your meeting with Ms Dolkens, when was it that you say, as in before, after or in-between, when was it that you say you had the conversation with Mr Kemp about indicating to him that you were disheartened if it was him that made the complaint?‑‑‑I recall probably just a couple of days. And then that was when I ended up having to go into hospital.

So a couple of days between those meetings, that's when you had the discussion?‑‑‑Yes.

All right?‑‑‑Yep. I never blamed him or anything. But, as I said, I was a bit disheartened that he had potentially done that.

HIS HONOUR: Could I just clarify, so is that a couple of days after the joint meeting?‑‑‑That was after the one-on-one meeting.

• [378] I sought this clarification because it seemed apparent to me that Ms Morgan was just agreeing to dates in an uncareful fashion. The clarification illustrated this to be the case.
• [379] In oral closing submissions, I took counsel for the plaintiff at length through the confusing evidence of Ms Morgan on this subject matter[56]. I described part of it as "mishmash"[57].
• [380] If Ms Morgan's evidence is to be construed as saying that the MIAs were discussing the plaintiff being the complainant prior to the first meeting, then I reject it as unreliable and against the weight of other reliable evidence I have otherwise accepted and prefer.
• [381] Ms Sutherland also gave evidence on this issue. She rejected the suggestion that there had been any discussion between the MIAs about the plaintiff being the complainant prior to the first meeting.[58] In addition to her denying the suggestion, she observed "It wouldn't have been prior to that [the first meeting], because we would not have had no knowledge of anything." She had given separate evidence of it having been discussed but she necessarily placed this as some time after the first meeting. Her evidence was that she had formed her own view that the plaintiff may have been the complainant based on the plaintiff's prior conversations with her.
• [382] Taking into account all of the matters set out above, I find that Ms Dolkens and Mr Bennetts did maintain the confidentiality of the plaintiff's identity as the complainant. I find that Ms Dolkens and Mr Bennetts did not disclose to anybody else in the Department the identity of the plaintiff as the complainant in the OHO complaint.
• [383] I find that, to the extent that MIAs had a suspicion or a belief that the plaintiff had been the complainant, on the balance of probability, these were based upon their own individually formed suspicions as to who may have made the complaint. I find the plaintiff had made statements on similar issues to those in the OHO complaint and had generally made negative statements complaining about his treatment by Queensland Health to MIAs prior to 11 April 2018. I find that it was these types of prior statements which caused MIAs to suspect the plaintiff was the complainant.

• [384] Under this heading, I will make findings in relation to whether or not the plaintiff had a psychiatric injury. Next, I will then consider whether any psychiatric injury was caused by breaches of a tortious or contractual duty of care.

• [385] The plaintiff's final written submissions accurately summarised the reported symptoms and reported results of examinations by the two psychiatrists in a tabulated form. I adopt that table and reproduce it as follows.

Dr Eric De Leacy, consultant psychiatrist, dated 25 August 2020

• Depressed and anxious with feelings of worry and worthlessness
• Sleep is disturbed and appetite reduced with weight fluctuations
• Relationships are marked with friction
• Problems with concentration and short term memory
• Diagnosis of Major Depressive Disorder

• Depressed and affect was extremely restricted
• Difficulty gathering thoughts due to pre-occupations and spoke quietly and very little
• Employment capacity in doubt in the field of radiographer or situations with hierarchical structures
• Withdrawn socially and domestically

Dr John Chalk, consultant psychiatrist, dated 11 December 2020

• Ongoing anxiety, panic attacks, agitation and feelings of anger
• Feelings of being "in danger"
• Socially isolated
• Poor sleep
• Weight fluctuations and poor energy and concentration levels
• Flashbacks
• Tired and irritable
• Lacks drive for intimacy
• Vague suicidal ruminations
• Feelings of guilt and tearfulness with current predicament

• Labile, teary and agitated
• Evidence of psychomotor retardation
• Poor historian
• Agitated and behaviours reflected degree of psychomotor agitation
• Evidence of significant hyperarousal but cooperative
• Mood was one of moderately severe depression

• [386] The views expressed in that table were based on the observations made by the relevant doctors on the occasions of their interviews with the plaintiff, and importantly, on the history which he provided to them. In the case of Dr De Leacy, it is apparent that the plaintiff came to the interview with some document that set out certain facts relevant to his history. That document was not attached to Dr De Leacy's report and its exact contents and origin are unknown.
• [387] It can be seen that each of the doctors initially found a 17 per cent impairment of the whole body. Each doctor found that the plaintiff was unwell from a psychiatric perspective. The plaintiff was diagnosed by both doctors as having a Major Depressive Disorder. I accept that the plaintiff had this disorder in August 2018 and still had it at the trial of this proceeding.
• [388] Dr Chalk, in his first report of 11 December 2020, said of the plaintiff's prognosis, that in the absence of any treatment, the plaintiff may well improve, but this is likely to be protracted. He expressed the view that the plaintiff was not then fit for work and his chances of any future employment would be much greater with the benefit of treatment.
• [389] Dr De Leacy, in his first report of 25 August 2020, said of the plaintiff's prognosis that it was guarded. His view was that there was unlikely to be significant improvement within a reasonable timeframe. A return to work would only be in the distant future and it was uncertain what work he would be able to do in the future. He advised that treatment should be instituted as soon as possible.
• [390] It is important to set out some of the plaintiff's history as it had been articulated to each of the doctors in these first reports.
• [391] In Dr De Leacy's first report, that history had included the following:

"Your client has been employed as a sonographer/radiographer for Queensland Health Gold Coast and had been in this role since about 2010. Things were reasonable until about mid-2017 when a new director and new line manager were appointed into the department. After this, somewhere around June, he developed symptoms of stress due to a number of difficult confrontations between him and his superiors, notably his director and line manager. He described being intimidated, shouted at, and discriminated in a number of ways. He was spoken to in a demeaning way and also claims he was yelled at. He reports being intimated by verbal threats [sic] and threatening body language.

He saw his general practitioner and had psychological treatment until about August 2017. He recalls that his symptoms improved and he returned to work. There were further incidents after this. He was subject to a far more significant and ongoing harassment and bullying by his managers and other staff members within the department. He was called into meetings and was abused and threatened and generally ostracised.

He says that some of the behaviour was due to a complaint that he submitted in February 2018 to the Office of the Health Ombudsman about what was actually happening in the department. He said the department had hired untrained staff [sic] to do tasks that endangered patients. He was vilified for making the complaint.

He had numerous incidents where he was bullied, intimated, and subject to rumours being spread about him. He was also subjected to unreasonable disciplinary action. He was alienated. He was assaulted by a porter on one occasion and his complaint about this was not recognised. He was subject to stalking-like behaviour in the form of staff being instructed to monitor his movements and communications. He was excluded from meetings and information was withheld from him.

As a result of this, he developed extreme stress. He also described experiencing panic attacks, sleep disturbance, and a full range of depressive symptoms."

• [392] Under a heading "Past psychiatric history" it was recorded: "He denies any past history of psychiatric disorder".
• [393] Under a heading "Past medical history" it was recorded: "He has had a sarcoidosis in the pulmonary system previously. This is controlled."
• [394] Under a heading "Personal history" it was recorded in part as follows: "He moved to Queensland eventually and has been employed at the Gold Coast Hospital since 2010. He has been there as a radiographer until he could no longer work there due to his stress levels."
• [395] In Dr Chalk's first report, the history had included the following:

"Mr Kemp told me that he had previously worked at the Gold Coast Hospital for some eight years as a radiographer and sonographer...He described the development of problems in the workplace over a period of time. It would certainly appear from his account that the difficulties, such as they were, escalated substantially from late 2017 onwards.

I understand that, in the middle of the year, a new director of medical imaging was appointed as well as a new line manager for sonography being appointed around that time.

Whilst there appear to have been some issues prior to that, in particular the incident with respect to the porter, it is not clear that Mr Kemp was psychiatrically unwell at that time. It certainly appears as though he had felt, rightly or wrongly, over a long period of time, that there had been less than fulsome encouragement of his professional development. He does appear as though towards the end of 2017 and into 2018 substantial escalation of his difficulties and ultimately his symptoms occurred.

I note that Mr Kemp has made comment to other practitioners with respect to the bullying and harassment. One note in particular, the comments in the report of Dr Roy with respect to "verbal abuse, intimidation, spreading of rumours about him, unfair and unreasonable disciplinary procedures, was made to feel isolated and alienated, was denied the opportunity to upskill, was assaulted, stalked, excluded from meetings and unsupported by his line managers.

Matters seem to have come to a head to a significant degree following a complaint he submitted to the Office of the Health Ombudsman (OHO) over some issues within the Radiology Department. As I understand it, the fact that he had made the confidential complaint became public knowledge and he was, in the aftermath of that, castigated and further harassed and bullied.

Mr Kemp eventually appears to have come under care. He saw a psychologist."

• [396] Under a heading "Past history" it was recorded: "Psychiatric: Mr Kemp denied any past history of psychiatric illness."
• [397] Under the following headings, it was recorded "Medical: sarcoidosis...Legal history: there was no relevant legal history...Compensation: he had been on compensation for a right shoulder injury and he was off work for some months...Litigation: there was no previous history of litigation."
• [398] The medical evidence did not finish with these first reports. Questions were raised by the defendant about the accuracy of the histories given by the plaintiff to the two doctors.
• [399] Neither Dr De Leacy nor Dr Chalk had been briefed with or told about the 2013 reports of Dr De Leacy and Dr Chung. Dr De Leacy gave evidence that he had forgotten that he had previously seen the plaintiff and provided a report in 2013. I accept that this was the case.
• [400] Dr Chalk was then briefed with those 2013 reports. Those additional reports altered some of the views that Dr Chalk expressed in his first report. Dr Chalk produced an addendum report dated 4 May 2021. In that addendum report, Dr Chalk, after having referred to the newly briefed Dr De Leacy report of 2013 and Dr Chung's report of 2013, stated as follows:

"In my view, it is inconceivable that Mr Kemp did not recollect these previous events and, certainly, there was nothing in my interview with him to suggest that his memory of events and recall of previous litigation was in any way impaired. Indeed, it would appear that not only was there a similar constellation of symptoms, but a similar perception by Mr Kemp that his employer was unsympathetic to his difficulties."

• [401] In answer to a specific question posed to him, Dr Chalk expressed the view in this addendum report that he did not consider that Mr Kemp had been honest in his presentation at the initial interview, particularly his denial of any past history of difficulties. He was asked whether, as a result of this additional material, he remained of the opinion that the claimant's current psychiatric injury arose as a result of the complaint made by him to OHO and the resulting bullying and harassing behaviour. His written response included the following:

"I think that his man was more vulnerable than he acknowledged and there has clearly been a long history of difficulties in the workplace. Indeed from his own account, it would appear that there were issues over an extended period of time and the events with respect to the claimed period of 12 December 2017 to 5 August 2018, in my view, have served merely as a lens to focus a number of issues that have clearly been present for a period of time. Indeed, Mr Kemp when he was seen in 2013, was voicing the opinion that he probably needed to move to a different job, given the difficulties there had been at his place of employment.

However, it would appear as though he was not symptomatic to the degree that he became after the issues were raised with respect to the Health Ombudsman.

In essence, then, it would appear that Mr Kemp had likely been having difficulties and a significant degree of dissatisfaction in the workplace over a period of time and he chose to escalate these to the Health Ombudsman at that time and this may well have galvanised the workplace. In the aftermath of that, he described a cascade of events leading to more prominent symptomology and the necessity of engaging, as I understand it, in some treatment.

I note in my previous report that I thought there had been an absence of appropriate treatment and I remain of that view. Certainly the past history, in my view, suggests that, with appropriate treatment, Mr Kemp's ultimate prognosis could be quite positive."

• [402] The "absence of treatment" referred to by Dr Chalk obviously included the fact that the plaintiff had not been treated with antidepressants.
• [403] Dr De Leacy had previously recorded the plaintiff refusing to be treated by antidepressants because of a concern as to side effects. Dr De Leacy gave evidence that there was no strong evidentiary basis of a risk of suicidal ideation effects on adults in relation to antidepressants. He referred to such views deriving from social media and he found them very frustrating. Obviously the treatment of a Major Depressive Disorder requires a combination of treatments, including by reoccurring sessions with psychiatrists and psychologists. However, the use of antidepressant medication also has an important role to play in such treatment. This was clearly the view of Dr Chalk and Dr De Leacy.
• [404] Dr Chalk then proffered the view, "I believe that apportionment in these circumstances is very difficult, however in my view, it is likely that half of this man's troubles stem from events that relate to enduring difficulties in the workplace, as I have noted."
• [405] In addition to his first report and addendum report, Dr Chalk also expressed an opinion which was recorded in a telephone conference note, dated 28 April 2022. This conference had been between Dr Chalk, counsel for the defendant and his instructing solicitor. Dr Chalk signed this telephone note as accurate. It was tendered in evidence.
• [406] Prior to the telephone conference, Dr Chalk had been given, amongst other things, all of the statements of the various defence witnesses which were made exhibits in this proceeding. These statements effectively denied the allegations of inappropriate conduct alleged in the seven events I have dealt with above. Dr Chalk was asked to assume that the contents of the statements were true and correct, and that the denials by those witnesses of the allegations made against them, were true and correct denials. He was also given a variety of medical reports from the plaintiff's 2013 District Court proceeding. These included Dr Chung's and Dr De Leacy's reports from 2013.
• [407] Against that background, Dr Chalk was then asked to consider whether there was a psychiatric explanation (as opposed to dishonesty) for the plaintiff's allegations in the statement of claim, and also in a statutory declaration the plaintiff had made on 15 February 2021 which had repeated some of those allegations. The opinion of Dr Chalk was as follows:

"When I saw the plaintiff on 10/12/20 he was unwell suffering an agitated depressive illness and in need of psychiatric treatment. At that time, I understood the onset of the illness was in 2018. The material relating to the plaintiff's previous claim was subsequently provided to me and, as I noted in my report dated 4 May 2021, in 2012-2013, "not only was there a similar consolation of symptoms, but a similar perception by Mr Kemp that his employer was unsympathetic to his difficulties."

Against that background, it can be seen the plaintiff had a long history of work place difficulties, the plaintiff's depressive illness was probably much more longstanding than he indicated, and he was in 2018 more psychiatrically vulnerable than he conceded to me.

Making the assumptions referred to above in paragraph 11, the plaintiff's untreated agitated depressive illness would go a long way to explaining his beliefs, expressed as they are in general terms, that people about him are talking about him, spreading rumours about him, treating him unfairly in various ways, holding him back and excluding and victimising him in various ways. Put another way, 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 than has been previously appreciated and that has been the case for some time."

• [408] A similar style of file note was then produced in relation to an interview between counsel for the defendant, his instructing solicitors and Dr De Leacy. That file note was dated 12 May 2022. It was signed by Dr De Leacy on 16 May 2022, indicating his agreement with the content of the document. A copy of that file note was admitted into evidence.
• [409] A similar process as that which had been undertaken with Dr Chalk, was also undertaken with Dr De Leacy. The note recorded that Dr De Leacy was also given both of Dr Chalk's reports, Dr De Leacy's 2013 report, and also the file note of Dr Chalk's telephone conference.
• [410] In this file note, Dr De Leacy made some initial observations:

"I see that I examined the plaintiff on 11 April 2013 at the request of Shine Lawyers, with respect to psychiatric injuries said to have been suffered secondary to a right shoulder injury suffered over a period of time during his employment with Gold Coast Hospital and Health Services.

Following the examination of the plaintiff, I provided a report to the court dated 15 April 2013 which listed at p 2 therefore the material available to me at that time. In the report, I set out the history given to me by the plaintiff, details of my clinical examination, my review of the material provided and the opinions I arrived at.

The plaintiff may not have recalled seeing me previously. And I did see him on 11 April 2013, I thought his prognosis was guarded and expected he would remain affected by the psychiatric symptoms he was complaining of for at least the short to medium term."

• [411] Dr De Leacy was then also asked to assume the same series of facts which Dr Chalk had been asked to assume, and that included that the statements of the defence witnesses, denying the allegations made by the plaintiff, were true. He was then asked the same question as to whether there was a psychiatric explanation (as opposed to dishonesty) for the plaintiff's allegations made in the statement of claim and the statutory declaration. He responded as follows:

"Given the severity of the plaintiff's psychiatric symptoms, there was the potential for him to have been far more sensitive to what co-workers 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."

• [412] Dr De Leacy later gave a second report dated 31 May 2022. Under a heading, "Background", he referred to his prior report from 2013. Dr De Leacy stated:

"It came to light that Mr Kemp had previously been assessed by me on date 11 April 2013, and this was in relation to stress following a shoulder injury. I diagnosed Adjustment Disorder. I did not recall previously assessing him. The previous assessment was long ago and done through an agency at a different location. I did not have the report from 2013 on my database as it was in the hands of MLCOA."

• [413] I pause to observe that I accept in full that Dr De Leacy did not recall his earlier report. No doubt he has done many thousands of reports, and as he said he did not have access to this particular report and it had been written a number of years before.
• [414] Dr De Leacy then went on to express the following views:

"I consider your client has developed a major depressive disorder in relation to the workplace stressors described in my report of date 25 August 2022. I consider that the adjustment disorder associated with his much earlier shoulder injury should have resolved by the time he was seen in 2020.

Given the length of time involved and apparent lack of improvement to date, I would consider that your client's injuries are stable and stationary. This does not mean he does not require treatment however.

Prognosis is guarded. At the last assessment, I considered, that he had not improved despite the passage of time and this would appear still to be the case.

Your client suffered an earlier adjustment disorder, which probably has resolved. He suffered physical illness that may have caused him to be stressed.

I would not change my impairment rating from that in my previous report, except that I would consider now, that some thought could be given to considering some pre-existing susceptibility, due to his physical illness and some prior discontentment, and therefore 10 per cent could be deducted from his previous score, as it would be impossible to calculate the influence of other factors in any other way. This leaves a WPI of 15 per cent.

Your client is significantly distressed and it is quite obvious that he could never return to his workplace after having been through this claim process which has appeared to have created considerable acrimony, and furthermore, it will be difficult for him to work in another setting as a radiographer for the considerable future. His confidence would be very low.

The difficulties with employment as listed above will be long lasting. It is quite conceivable that he may not be able to work as a radiographer again. The comments made in my report of 2020 would still be relevant. I do not know if he has taken up more treatment since I last assessed him.

Your client requires further treatment. He needs both psychological and psychiatric care and should see a psychiatrist, monthly and a psychologist, fortnightly and this should be at least for at least six months but probably for considerably longer. He should also be considered for medication. The cost of seeing a psychologist is about $180 a session; the cost of seeing a psychiatrist can be up to $400 a session. My earlier recommendations still apply."

• [415] When the plaintiff was cross-examined about his failure to identify to either doctor the psychiatric diagnoses which had been made during the 2013 District Court proceeding and for his prior 2013 WorkCover claim, the plaintiff said that he did not believe that he had had a psychiatric illness.
• [416] Equally, when the plaintiff was cross-examined about his failure to identify to either doctor that he had brought the prior District Court proceeding, he said that he had not understood what "litigation" meant. This was his explanation for why he identified there had been no prior litigation to Dr Chalk.
• [417] In Dr Chalk's evidence in cross-examination, he rejected both of those explanations by the plaintiff.
• [418] It was suggested to Dr Chalk that the plaintiff had never understood that what occurred in 2012 to 2013 consisted of a psychiatric illness. In rejecting that proposition, Dr Chalk said the plaintiff had seen a psychologist apparently for a period of time and queried why would you go and see someone for treatment if you were not psychologically unwell. Dr Chalk gave further evidence in response to additional questions on this topic, to the following effect: "...with the greatest respect, if you are referred to a psychologist and you then have an accepted psychiatric condition as part of a WorkCover claim, it is difficult to see that it is not a psychiatric illness or a psychological illness."
• [419] Dr Chalk was then taken to the plaintiff's evidence where the plaintiff had said "I'm not sure what the definition of litigation is" and "Isn't litigation going to court?". It was then suggested to Dr Chalk that there was no information which suggested that the plaintiff had actually been to court. The suggestion was that this provided an explanation as to why the defendant had said he had not been involved in litigation. Dr Chalk rejected this and gave evidence of his usual questioning practice which he had used for decades when dealing with patients. His evidence was as follows[60]:

"I would have asked him - as I do people, I would have asked him whether or not he had had a previous WorkCover claim, whether he'd had a common law claim, a motor vehicle accident or other personal injury leading to a common law claim, and under the legal history I would have asked him about whether or not he'd had previous motor vehicle infringements, criminal history, juvenile history or a history of domestic violence orders. I would never - I've never asked anyone in my life whether they've been to the District Court, and I have a very standard set of questions that I would ask in those regard - in that regard."

• [420] Cross-examination proceeded further in a similar vein. Again, a further answer of the plaintiff was raised with Dr Chalk. That answer had been "Well, I don't understand the legal terminology I don't understand the legal process[61].". Dr Chalk responded, in part, as follows[62]:

"I would never have asked him. I would have asked him had he ever appeared in court. That may have been part of the - under the legal history, had he ever been to court, but that would be the beginning and the end of it."

• [421] The following further exchange then occurred[63]:

"If someone was of the view as I have just expressed about Mr Kemp, that would not be such as to being inconsistent with answering questions about litigation. Now I appreciate your comments doctor that you ask a range of questions that - - - ?--- So I have a range of questions in the way that I would ask them and, as you said, as set out in the report, I'd ask about - pardon me. I'd ask about whether or not he'd had any previous convictions of any sort. I'd ask about previous psychiatric history, previous compensation history, previous counselling or anything like that, and then I would also ask about whether or not he'd ever been involved in a third party claim, either for a motor vehicle accident or some sort of personal injury. So I try very hard to cover all of those range of things, but I don't ask if someone's been in the District Court or anything like that."

• [422] In my view, there was force in what Dr Chalk was saying. I do not accept that the plaintiff would not have been aware that he had been involved in litigation. My reasoning is as follows.
• [423] First, the plaintiff is a tertiary-educated person and the word 'litigation' is a term generally understood in the community to include engaging in court action.
• [424] Secondly, it is clear that Dr Chalk's usual process was to ask a wide range of questions designed to identify the plaintiff's potential involvement in a series of actions or activities, some of which would be court claims. The indication in the report that there was no history of litigation indicates there was a negative answer to a whole range of questions.
• [425] Thirdly, in the first half of 2017 at a meeting with Ms Green concerning the plaintiff's Professional Development Planning review, the plaintiff was well aware that he had been involved in a court proceeding. He had expressly stated this to Ms Green on more than one occasion at this review. This is the occasion when the plaintiff became emotional and tried to hug Ms Green for comfort. There is a documentary record in evidence that he expressed his regret for having gone to court against Queensland Health.
• [426] On the balance of probabilities, I find that the plaintiff would have been aware that he had been involved in a prior court case for personal injuries when he saw both Dr Chalk and Dr De Leacy. I am also of the view that he would have been aware that part of his claim was that he had a psychiatric or psychological injury. His statement of loss and damage recorded this. He had been seeing a psychologist for sessions. He saw two psychiatrists for the purpose of reports being prepared for the court proceeding.
• [427] The plaintiff's non-disclosure of these matters is consistent with his seeking to downplay past psychological or psychiatric injuries and seeking to focus on what he perceived to be his current injuries.
• [428] I pause to mention one portion of the plaintiff's evidence where he, in effect, sought to undermine Dr Chalk's approach and objectivity in his preparing the first report.
• [429] In evidence-in-chief, the plaintiff sought to draw a distinction between how he was treated by Dr De Leacy and how he was treated by Dr Chalk at each of the two interviews for their respective first reports.

Duty of care, the content or scope of the duty and breach of duty

• [455] I turn now to whether a duty of care was owed to the plaintiff, the scope of that duty, whether there was a breach of the duty and whether any breach caused the injury.
• [456] I have previously summarised the pleading and discussed a number of legal principles applicable to these issues at the commencement of these reasons. In reaching my conclusions below, I have had regard to all of those matters.
• [457] In this case, I accept that there was a duty of care owed by the defendant as employer to the plaintiff as employee to take reasonable care to avoid exposing him to unnecessary risks. The very broad pleading of duty in paragraph [3] of the statement of claim did little to refine the scope of this duty in light of the facts. As I observed in the 'Legal principles' section of these reasons, stating a duty at such a high level of abstraction does not provide great assistance in answering the subsequent question of what was the scope of that duty and was the duty breached in a given case. Often, these last two questions will be considered together having regard to the particular factual matrix which exists in the case.[64]
• [458] This is a case where the alleged scope of the duty of care owed to the plaintiff can really only emerge from an examination of the contended for events of breach in the context of the findings of fact. Relevantly, this includes the following.
• [459] First, at the time of Ms Dolkens's investigation into the OHO complaint, she was not aware that the plaintiff had any particular psychiatric vulnerability to the risk of a recognisable psychiatric illness. That was the basis upon which the proceeding was run.
• [460] Secondly, when Ms Dolkens received the OHO complaint, she became aware that it had been made confidentially by the plaintiff, and the plaintiff did not want his identity as the complainant disclosed to other people within the Department.
• [461] Thirdly, Ms Dolkens was aware of the content of the complaint because she had the OHO telephone record of the complaint, so she was aware that it concerned general allegations that the MIAs had performed various tasks beyond the scope of their positions or had done various actions wrongly so as to cause risk to patients.
• [462] Finally, Ms Dolkens was aware that the plaintiff worked and would continue to work with the MIAs on a daily basis.

"HIS HONOUR: Thinking, "Who could this be?" And in the case of Ms Morgan, she says: "I think it could be the guy who has said similar things to me on a number of occasions before the complaint has been made." And that's a breach - is that a breach of duty of the hospital?

MR GREEN: And I don't suggest that there is sufficient control within the employer hospital to prevent those things from occurring, but there is sufficient control for the hospital to do something else that manages the way in which any of those views impact on the work, the workplace and the people operating within the workplace."

• [481] I am identifying this scope only for completeness to indicate it was not pressed by the plaintiff.
• [482] Independent of the plaintiff's position, I would not, in any event, have accepted that such a duty with this scope was owed by the defendant to the plaintiff. I find that the defendant owed no duty with a scope which imposed an obligation to prevent its employees from subjectively wondering, suspecting or musing on things such as who may have made a complaint against them.
• [483] The third scope of the general duty is that there was an obligation to say affirmative things to the MIAs in the two meetings so that they presumably would not take as much offence from having been the subjects of a complaint to the OHO. Referring back to the extract from oral closing submissions set out immediately above, these were the things over which it was said the Hospital had sufficient control to manage the way in which any views impacted on the work, workplace and people within that workplace. This was not a distinctly pleaded contention, nor was it explored in cross-examination with Ms Dolkens. The general substance of the affirming statements emerged in the following exchanges with counsel for the plaintiff in closing submissions[66]:

"HIS HONOUR: But was there any investigation in this trial as to that matter?

HIS HONOUR: That matter, that there were things that could be done.

HIS HONOUR: ---called in relation to systems, and I don't think you put a case to the witness, "This is what you should have done."

MR GREEN: No, your Honour. I didn't. And there was no evidence led on behalf of the plaintiff's case to that effect.

HIS HONOUR: So what - how do I make a finding in that respect?

MR GREEN: In my submission, it comes down to a matter of logic in the sense that what one knows of a workplace and what one knows of the policy that had been expressly adopted by the hospital, what Ms Dolkens expressly understood and knew of the importance of confidentiality in managing these situations.

HIS HONOUR: But I just need - and I'm sorry I'm doing this, but I want to break it down, because there's - again, there was a factual finding---

HIS HONOUR: ---as to whether I believe Ms Dolkens and I believe - and/or I believe Mr Bennetts as to whether they told other peoples these matters. Assume for argument's purpose that I believe them, they call an initial meeting where they say, "There's been a complaint against MIAs, and we're going to call you in individually to speak to you about it, and the complaint's been made to the OHO." Now, firstly, is there anything - do you say there's any problem with the content of that original meeting?"

MR GREEN: Except that there's no evidence that that meeting indicated the appropriateness of the complaint in the sense that there was substance that needed to be considered and investigated, and it was okay for someone in the workplace to make a complaint about our procedures and the way we did things.

HIS HONOUR: But can you just tell me what that means.

MR GREEN: Yes, your Honour. So Mrs Dolkens has the meeting with all the MIAs, and she might say to them, "Look, a complaint has been made, and I want everyone to understand that it's okay for complaints to be made, because we're open and transparent, and we are not concerned about our processes. But if they can be improved, we will improve them. Thank you for people who make complaints." That's an affirming statement that sits with the person who makes the complaint so that everyone else knows that it's okay.

HIS HONOUR: Now, can I just say, you didn't put that case to her as I recall it. Is that correct?

MR GREEN: Not expressly. What I put to her was that there was nothing else said.

HIS HONOUR: You didn't put to her that she should have said that.

MR GREEN: It's not express in the sense of what I articulated to your Honour, but I did put to her that there was nothing she did to support Mr Kemp in that process or anything to that effect. I'll have to go away and find that reference and forward that to your Honour and, of course, to my learned friend.

HIS HONOUR: See, this sounds like I'm being asked to stand in the roles of some type of expert in relation to human resources. I mean...

HIS HONOUR: Okay. We've done the first meeting. We go to the second meeting, and the evidence, as it exists - and you can tell me whether I'm wrong - is she gets individual MIAs in, and then she's - she basically asks them a series of questions, not necessarily identifying or asserting that they have done the conduct but at least, "Do you know of this or did you see this?"

MR GREEN: That seems to be the effect of that evidence, yes, your Honour. And you've got the correspondence that Mrs Dolkens wrote to Mr Kemp, which goes through, seriatim, the points raised in his complaint, which would suggest that not only was that the subject of the meeting between Mrs Dolkens and Mr Kemp but also found its way into the discussions with the MIAs.

HIS HONOUR: And so what do you say was wrong with what occurred in the individual meetings?

MR GREEN: I can't point to any error, because I don't have any evidence that I can lead about those individual meetings.

HIS HONOUR: Or that there should have been something else done in them?

MR GREEN: Insofar as the breaches that have been alleged---

HIS HONOUR: So I have a focus on what you say is the conduct which would support a breach of duty?

MR GREEN: Yep. Firstly, that there was a statement affirming the fact that the - a complaint was made, and whoever made it was within their rights, and that nothing the complainant has done will circumvent the longevity of the MIAs' appointments or their employment.

HIS HONOUR: Well, how could they say that at the beginning of an investigation where this person's raised these points?

MR GREEN: Because it's an investigation and nothing in the complaint itself is going to give rise to that. Anything that comes out of the investigation which is different - and there is - Hayes is a decision which talks about a distinction between the investigative process and the workplace health and safety of the individuals associated with it. So it's more the investigation or what happens as a result of the investigation that is the issue, rather than---

HIS HONOUR: So what? You say nothing in the investigation will---

MR GREEN: Sorry. Nothing in the complaint will circumvent or prejudice the longevity of the MIAs appoint - employment.

HIS HONOUR: That wasn't put to the witness, this, was it?

MR GREEN: I can't say that it was, your Honour. I've no individual recollection of that. And insofar as it's a correlation of what is alleged at paragraph 17(g) by way of a breach, insofar as we've grouped together the notion of offending behaviour. [67]"

• [484] I do not accept that a duty with this scope was owed to the plaintiff. Acting prospectively, without the benefit of hindsight, I do not accept that 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, if the plaintiff did not make such affirming statements.
• [485] I note that there was nothing pointed to by the plaintiff which suggested that any of Ms Dolkens's express statements made at the first or second meetings were wrong or inappropriate so as to evidence a breach of duty. It is only the alleged failure to say such affirming words which constitute the breach and speaks to the scope alleged.
• [486] There was no evidence led by a psychologist or some appropriately qualified human resources expert that such affirming statements should be employed to achieve a particular result.
• [487] To the extent the plaintiff submitted that it was a matter of logic and common sense, I do not find it logical or common sense that these statements or statements like them would be required to be made so as to fulfill a duty of care. Common sense suggests that if you ask someone not to think about something in particular, that will likely cause him or her to focus more on that very thing. Thanking a complainer for having made the complaint as a matter of common sense would have likely focussed the MIAs minds more on the identity of the complainant. All of the MIAs who gave evidence appeared to be intelligent people. None of the affirming language as suggested would have camouflaged the obvious fact that:

(a) there was a complaint;

(b) it concerned all the MIAs;

(c) it concerned the adequacy of their work performance and the scope of their work; and

(d) it had been made to the OHO.

• [488] Thanking the person for having made the complaint would be more likely to irritate the objects of the complaint, rather than engender good feelings.
• [489] Making such statements that there was nothing for the MIAs to be concerned about at the beginning of or during an investigation equally would seem to be inappropriate. It may be seen to reflect a prejudgment of the issues and may be problematic if Ms Dolkens had later formed a view that was adverse to the MIAs. I cannot accept that a duty existed with this scope.
• [490] Even if I was wrong, I conclude that there was no breach of duty by the defendant by failing to say such affirmative statements. I find that those statements would not have prevented the MIAs from suspecting that the plaintiff was the complainant. Further, I have found that none of the pleaded inappropriate conduct occurred. Any breach of duty with this scope did not cause the psychiatric injury the plaintiff suffered.
• [491] The fourth scope of the general duty is that there was an obligation to quell any gossip or rumour that the plaintiff was the complainant and an obligation to provide a happy workplace. These scopes did not seem to be advanced by the plaintiff. I raise them for completeness.
• [492] I do not accept that there is a duty with a scope to quell such gossip or rumours in the circumstances of this case. Whilst White J acknowledged in Queensland Corrective Services Commission v Gallagher[68] that there may be circumstances in certain cases where such a duty might arise, no such circumstances existed here. Nor is there a duty to provide a happy workplace.
• [493] Even if I were incorrect and one or all of the scopes of duty existed in this case, there was no breach of the duty.
• [494] The defendant, through its management team, had no knowledge that such gossip was occurring. The plaintiff never informed the defendant's management team that such gossip was occurring. There was no failure to take action to quell the gossip (assuming such a duty with that scope existed), as the defendant had no knowledge of it.
• [495] In relation to the happy workplace, I have found that there was no inappropriate conduct engaged in. No doubt there was some distancing by some MIAs from the plaintiff because of their suspicions that he was the complainant. However, this was not victimising, bullying, retribution or harassing type conduct. Even though Ms De Souza said she saw people (being a reference to unidentified MIAs) fail to greet the plaintiff and not speak to him, the evidence did not descend to identifying how often, in what circumstances and exactly by whom this conduct had been engaged in. Even if a failure to greet the plaintiff happened on occasions, that itself would not amount to inappropriate conduct. I am satisfied that there was no shunning or complete refusal to speak to the plaintiff occurring. My specific findings on the seven events supports this. The plaintiff's capitulation on the allegations against Ms Morgan, Ms Sutherland and Ms Green also underscore this finding.

(a) the fact of a complaint having been made by an employee remain confidential to the management staff necessary to investigate and report to the OHO on the complaint;

(b) employees acting as "whistleblowers" were protected; and

(c) its employees did not engage in victimisation, retribution, bullying or harassment of a person who made a complaint to the OHO.

• [498] This particular scope can be derived from sub-paragraph [17](c) of the statement of claim.
• [499] I have, effectively, already found that there was no duty with a scope:

(a) to maintain the confidentiality of the plaintiff as the complainant;

(b) to devise, implement and supervise a proper or adequate procedure to seek to control the minds of individual employees in terms of their forming suspicions as to who had made the complaint;

(c) to quelling of gossip between the MIAs as to who may have made the complaint, or to provide a happy workplace; and

(d) to make the type of affirming statements suggested by the plaintiff, via his counsel, in closing oral submissions.

• [500] In respect of each of those matters, I have also made separate findings on whether a breach occurred and whether any breach was causative of the psychiatric injury. I will not repeat that reasoning.
• [501] However, I do find that the defendant would have owed a duty with a scope 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. I am satisfied that the risk of an employee sustaining a recognisable psychiatric illness would be reasonable foreseeable and not far-fetched or fanciful, if such procedures were not provided.
• [502] However, I find that there was no breach of this duty as the defendant had a complaints 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.
• [503] Further, the defendant 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 had previously made a RiskMan complaint in May 2017. The plaintiff was evidently 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.
• [504] The HR Policy allowed for gradations of complaints, commencing with informal, moving to formal and included the ability to make higher level complaints if the inappropriate conduct was said to have been engaged in by the immediate managers of the complainant. Quite separately, Ms Dolkens and Ms Green both had personal open-door policies. Employees could come and see them and raise any concerns. This was known to the general employee group.
• [505] I am satisfied that all of these processes meant that appropriate steps had been taken against the risk of psychiatric injury of employees from inappropriate conduct.
• [506] Ms Dolkens acted consistent with the HR Policy when she was referred the OHO complaint.
• [507] Accordingly, I find that there was no breach of the duty.
• [508] Even if I were incorrect on my finding of no breach of a duty with this scope, given my findings that the pleaded inappropriate conduct did not occur, any breach could not have been causative of loss. That is, even if there were some inadequate system in place to deal with complaints of vicitimisation, retribution, bullying or harassment, I have found that none of that type of inappropriate conduct occurred.

• [513] I have found against the plaintiff on liability. Accordingly, there is strictly no quantum to assess.
• [514] Nonetheless, the following assessment of quantum is made on the assumption that the defendant has been found liable for the causation of psychiatric injury to the plaintiff.

• [515] The starting point for general damages is to recognise that both Dr Chalk and Dr De Leacy had assessed at the time of their first reports a PIRS rating of 17. Within the Workers' Compensation and Rehabilitation Regulations 2014 ("the Regulations") operative as at 31 October 2022, that PIRS rating would come under the heading Part 2 Mental Disorders, within Item 11 Serious Mental Disorders. Item 11 covers a PIRS rating between 11 per cent and 30 per cent. That Item 11 would then have an ISV range of between 11-40, and if there had been no pre-existing condition, I would have assessed an ISV amount of 25, having regard to the adverse impact of the condition which now afflicts the plaintiff.
• [516] However, I do not assess the whole of the 17 per cent impairment as being compensable for the following reasons.
• [517] I am satisfied that there was an existing depressive disorder, which pre-dated 11 April 2018. The decomposition after 11 April 2018 was, in effect, an aggravation of this disorder. Dr De Leacy sought to attribute a 10 per cent reduction on the PIRS figure as reflecting an established practice of psychiatrists in the Medical Assessment Tribunal where it is impossible to disentangle the effect of the pre-existing disorder. Whatever the practice is in that Tribunal, I prefer the approach of Dr Chalk, where he, doing the best that he could, attributed 50 per cent of the psychiatric injury to the pre-existing disorder. I am not satisfied that a 10 per cent discount would fairly represent the effect of the pre-existing condition.
• [518] This discount of 50 per cent would reduce the injury to a PIRS rating of 8.5. The plaintiff would then sit within Item 12 of Schedule 2, which covers PIRS ratings of between 4 per cent and 10 per cent. The ISV range is 2-10. I find that an assessment at the upper end of that range is justified, given the PIRS rating for that band and the prognosis of the psychiatric disorder. I am of the view that a rating of 7 for the ISV would be appropriate, even taking into account the fact that the plaintiff has not been prepared to be treated with antidepressants. The defendant had sought an ISV of 3.
• [519] Moving then to Schedule 12 of the Regulations, and by reference to Table 8 for an injury sustained from 1 July 2018 to 30 June 2019, Item 2 for an ISV of 7 provides for a calculation of $1,760 times 7, which would come to an amount of $12,320. In accordance with that calculation, I would award the sum of $12,320 for general damages.

• [521] In respect of special damages, there was agreement reached that the plaintiff had incurred the expenditure which appears in Exhibit 19.
• [522] Exhibit 19 records the following expenditure:

(a) Pharmaceutical expenses $250.00;

(b) Medical expenses $1,000.00;

(c) Travelling expenses $2,000.00;

(d) Medicare refund $4,586.60; and

(e) WorkCover Queensland refund $10,895.53

• [523] Each of the above amounts cumulatively come to the figure of $18,732.13.
• [524] The defendant accepted that the full amount for the WorkCover Queensland refund should be allowed as special damages. This was the $10,895.53 amount. However, the defendant submitted that there should be a discount on the residual sums. This was said to be on the basis that by September 2020, the period of the aggravation of the underlying depressive disorder should be treated as if it had not persisted. The basis for this contention was a proposition to the effect that if the plaintiff had engaged in appropriate treatment, including the use of antidepressants, the condition would have resolved by that time.
• [525] I do not accept the full extent of that submission.
• [526] I accept that there is a time when, on the balance of probability, proper treatment which includes the use of antidepressants, will have resolved the depressive disorder (as aggravated) to an extent that the plaintiff would be fit to work, including as a sonographer and radiographer.
• [527] Dr De Leacy in cross-examination conceded that he could not identify any reason why the plaintiff could not be treated successfully with such antidepressants. Dr De Leacy also conceded that many people who are treated for depression by the taking of such medication are able to function well at work, and the use of medication would significantly enhance the prospects of recovery by the plaintiff. Dr De Leacy also conceded that antidepressant medication would likely hasten the plaintiff's recovery. Dr De Leacy referred to social media having an effect on people's reluctance to use antidepressant medication. He referred to being very frustrated by this.
• [528] In his evidence in reply, Dr De Leacy gave evidence that such medication does not always work, but then went on to observe that with some people such depressive illness will, over a long period of time, just resolve, even without medicine. He said it usually took five years.
• [529] Certain earlier reports of a Dr Roy were tendered into evidence. Dr Roy was also a psychiatrist. He was not called in the case.
• [530] Dr Roy had seen the plaintiff in November 2019 and produced a report dated 28 February 2020. He had recorded a plan for the plaintiff which included the following statement, "(2) Unwilling to take any antidepressants or anti-anxiety medications at this point in time. However, if there was no improvement, then we could consider using Efexor and Prazosin." A subsequent report of 25 May 2020 again recorded the plaintiff's unwillingness to take any antidepressant or anti-anxiety medication.

• [535] The plaintiff submits that s 306J of the WCR Act is operative in the circumstances of this case. That section is applicable if the court is considering the making of an award of damages of loss of earnings and the award is unable to be precisely calculated by reference to a defined weekly loss.
• [536] Section 306J of the WCR Act does not operate to modify the common law principles covering the assessment of loss of earning capacity, but requires the court to be satisfied that the worker has suffered loss, having regard to the person's age, work history, actual loss of earnings and any permanent impairment or other relevant matters. If the court awards damages, it must state the assumptions on which the award is based and the methodology it has used to arrive at the award.
• [537] The starting point is that I am satisfied that the court is unable to precisely calculate a loss and damage for past economic loss by reference to a defined weekly loss so that s 306J of the WCR Act is engaged.
• [538] Secondly, I have had regard in Exhibit 12 tab 41 to the summary of the plaintiff's income and tax records. They show the following.

(a) In the year ending 30 June 2016, the plaintiff had gross earnings of $116,250 and net earnings of $82,768 (an average of $1,591.69 per week) as a radiographer and a sonographer.

(b) In the year ending 30 June 2017, the plaintiff had gross earnings of $98,854 and net earnings of $71,864 (an average of $1,382 per week) as a radiographer and a sonographer.

(c) In the year ending 30 June 2018, the plaintiff had gross earnings of $109,241 and net earnings of $78,771 (an average of $1,514.83 per week) as a radiographer and a sonographer.

(d) In the year ending 30 June 2019, the plaintiff had gross earnings of $97,836 and net earnings of $71,386 (an average of $1,372.81 per week) as a radiographer and a sonographer.

(e) In the year ending 30 June 2020, the plaintiff had gross earnings of $114,872 and net earnings of $82,452 (an average of $1,585.62 per week) as a radiographer and a sonographer.

(f) In the year ending 30 June 2021, the plaintiff had gross earnings of $32,081 and net earnings of $20,423 (an average of $392.75 per week) as a radiographer and a sonographer.

(g) In the year ending 30 June 2022, the plaintiff had gross earnings of $4,928 and net earnings of $3,576 (an average of $68.77 per week) as a radiographer and a sonographer.

• [539] I note that at the time the plaintiff was said to have incurred his injuries in 2018, he was approximately 44.5 years of age. At the time of trial, he was approximately 49 years of age and had a life expectancy of some further 38.9 years.
• [540] The plaintiff submits that the past loss earning ought to be calculated in the figure of $396,000. This is a reference to the calculation contained in sub-paragraph [20](c)(iii) of the statement of claim. It used a weekly figure of $1,600 net earnings per week. I do not accept the plaintiff's submission that this is the appropriate figure for past economic loss. My reasoning is as follows.
• [541] I reject the plaintiff's submission that there was no evidence of any pathology or symptomology prior to the occasion when he was said to have suffered loss. I have found, there was an already existing depressive disorder which I have found to represent 50 per cent of the overall 17 per cent PIRS assessment.
• [542] As I have set out above, I have allowed five years in total for recovery from the Major Depressive Disorder, starting from September 2018. I have found that by 25 August 2020, the plaintiff, acting reasonably, should have engaged in the use of antidepressants as part of his proper treatment of the disorder. I have found that at the end of that five year period, the plaintiff would have been able to re-engage with his work, including his work as a sonographer and radiographer. It is this five year period which is relevant to the calculation of past economic loss.
• [543] The next submission of the defendant was that the plaintiff's calculation of past economic loss operated from the premise that he had ceased work altogether in August 2018. The defendant, by its counsel, submitted that there was evidence which demonstrated that this was incorrect. The example given was that the meeting records in evidence showed the plaintiff attending a meeting at work in October 2018.
• [544] No doubt there was some work performed after 2018, but it does not seem to have been extensive.
• [545] The more important point is that the summary of the plaintiff's income tax records indicate that for the financial years ending 30 June 2018, 30 June 2019, 30 June 2020, the plaintiff was receiving what I would regard as normal levels of gross and net income. It is evident that some of those amounts were being paid by the Hospital and some were being paid by WorkCover. Only the WorkCover amounts have been said to be refundable.

• [555] I have found that, acting reasonably, the plaintiff should have been back in employment by April 2024. Accordingly, I find that the plaintiff is not entitled to any future economic loss.

• [556] For the reasons under sub-heading (e) above, I would not allow a claim for future lost superannuation.

(f) Future expense damages or costs of mitigation

• [557] Given that my assessment is based on a finding that the plaintiff should have undertaken appropriate treatment in mitigation of his loss, there should have been an award for the costs of the mitigation. This is not future expenses, but rather an allowance for the costs which the plaintiff would have incurred in order to reasonably mitigate his loss. I would allow:

(a) Pharmaceutical expenses in the sum of $4,000 (on a global basis);

(b) Travel expenses for medical, pharmaceutical and rehabilitation attendances in the sum of $1,200 (on a global basis); and

(c) Psychiatric and psychologist treatments over three years in the sum of $10,000 (on a global basis).

• [558] I note the rates which Dr De Leacy gave in his 31 May 2022 report of $400 per session for a psychiatrist and $180 per session for a psychologist. I have assumed that the need and frequency of those sessions would be greater at the start of the treatment but would reduce over time. Doing the best I can, the $10,000 global amount, in my view, appropriately compensates for these costs.

• [559] The calculation for this sum is pursuant to the formula set out in s 306N of the WCR Act. The calculation is as follows: 3.2 per cent x $259,974 x 4.083 years[70] x 0.5 = $16,983.58.
• [560] In summary, if I was incorrect on liability, the following would be the award of damages:

• [561] I have found against the plaintiff on the issue of liability. As a consequence of this, the claim ought to be dismissed. I will make that order.
• [562] I will hear the parties on costs of the proceeding.

[1] Paragraph [5] of the plaintiff's closing submissions.

[2] Per Beach, Macaulay JJA and Forrest AJA.

[3] The fourth event concerns Benjamin Adams.

[4] The fifth event concerns Hayley Morgan.

[5] The sixth event concerns Amanda Sutherland.

[6] Throughout the pleading and evidence, the words "depression" and "depressive" were used interchangeably when referring to the plaintiff's psychiatric disorder.

[7] Certain obvious typographical errors in the pleading have been corrected in this reproduction.

[8] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307 - 308, referring to Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25.

[9] Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 at [88].

[10] Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 at [88].

[11] Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 at [22].

[12] Roads and Traffic Authority NSW v Dederer [2007] HCA 42 at [18] per Gummow J, with whom Callinan and Heydon JJ agreed.

[13] See also Walker v Greenmountain Food Processing Ltd [2020] QSC 329 at [77]- [92].

[14] Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1, 13 [23] (Hale LJ).

[15] [2022] HCA 12 at [104].

[16] In paragraphs [81] to [87], the decision in Kozarov was examined. It was a case where the subject matter of the worker created inherent risks to the material wellbeing of the workers involved in a particular cause of prosecution.

[17] [2002] HCA 35; (2002) 211 CLR 317, 331 [12] per Gleeson CJ; [2002] HCA 35. See also Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51, 70 [45] per French CJ, Gummow, Hayne, Crennan and Bell JJ; [2009] HCA 42.

[18] [2007] NSWCA 377; (2007) 71 NSWLR 471, 478 [23]; [2007] NSWCA 377.

[19] New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 at 57 per Gummow and Hayne JJ.

[20] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [299] per Hayne J.

[21] See Robertson v State of Queensland [2021] QCA 92 at [146]- [147] per Henry J, with whom Fraser and McMurdo JJA agreed. See also Stevens v DP World Melbourne Limited [2022] VSCA 285 at [54] per Beech, Macaulay JJA and Forrest AJA.

[22] Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [5] of the reasons of White J and [21] in the reasons of de Jersey CJ and [1] of Pinkus J, who agreed with the reasons of de Jersey CJ and did not evidently depart from them on this issue.

[23] Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 at [60] per McMurdo JA, with whom Fraser JA and Boddice J agreed.

[24] In cross-examination, Dr De Leacy noted that the word 'well' as it appeared in the report should be 'unwell'. I have included this modification above.

[25] In cross-examination, Dr De Leacy accepted that the word 'not' should appear after the word 'do' as it appeared in the report. I have included this modification above.

[26] Referred to in the document as Ms Tuite, but for clarity purposes I will refer to her always as Ms Green.

[33] QH will have been a reference to Queensland Health.

[40] The transcript used the word 'didn't' but clearly the plaintiff meant 'did'.

[41] Being a reference to the content of the email.

[43] ASAR is an acronym which stands for 'Australian Sonographer Accreditation Registry'.

[49] See Exhibit 6, Statement of Ms Sutherland at paragraphs [20], [21] and [25].

[59] That statutory declaration was not in evidence.

[64] See Wolters v University of the Sunshine Coast [2021] QSC 298, where Applegarth J approved of the observations of Hodgson JA in Sheather v Country Energy [2007] NSWCA 179 at [20].

[68] [1998] QCA 426 at [5].

[69] Which I have rounded up to the end of August 2020.

[70] The period starts at the beginning of October 2020 and finishes at the end of October 2024.