TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC
HARM – AT COMMON LAW – FACTORS – EXISTENCE
OF DUTY –
BREACH OF DUTY – DAMAGE AND CAUSATION – where the appellant nurse
Source
Original judgment source is linked above.
Catchwords
TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRICHARM – AT COMMON LAW – FACTORS – EXISTENCEOF DUTY –BREACH OF DUTY – DAMAGE AND CAUSATION – where the appellant nursealleged she incurred a psychiatricinjury due to a breach of duty of care by thedefendant hospital – whether the trial judge erred in concluding theappellantwas not “bullied, badgered or mobbed” – whetherduring a performance management process the appellant exhibitedsignsheightening the foreseeability of psychiatric injury – whether thedefendant owed the appellant a duty of care to protectfrom psychiatric injury– whether the alleged duty of care was breached – whether theappellant proved the alleged breachof the duty caused her psychiatricillnessHealth Practitioner Regulation National Law (Queensland),s 237Workers’ Compensation and Rehabilitation Act 2003
(Qld), s 305B, s 305D
Eaton v TriCare (Country) Pty Ltd [2016] QCA
139, considered
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR
44
[2005] HCA 15, considered
Nationwide News Pty Ltd v Naidu
(2007) 71 NSWLR 471
[2007] NSWCA 377, cited
Robinson v State of
Queensland [2017] QSC 165, explained
Tame v New South Wales (2002)
211 CLR 317
[2002] HCA 35, cited
Wyong Shire Council v Shirt
(1980) 146 CLR 40
[1980] HCA 12, cited
Judgment (178 paragraphs)
[1]
McInnes Wilson Lawyers for the first and second respondents
[2]
[1] FRASER JA: I agree with the reasons for judgment of Henry J and the order proposed by his Honour.
[2] McMURDO JA: The reasons of the trial judge are extensively analysed in the judgment of Henry J. Substantially for the reasons which Henry J has given, I would dismiss the appeal because the respondents did not come under a duty to take reasonable care to avoid a psychiatric illness to the appellant.
[3] In Koehler v Cerebos (Australia) Ltd,[1] McHugh, Gummow, Hayne and Heydon JJ said:[2]
[3]
"It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.
[4]
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. ... [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned."
[5]
[4] The critical factor in Koehler was that the employer had no reason to suspect that the employee was at risk of psychiatric injury.[3] In contrast, the critical factor in Eaton v TriCare (Country) Pty Ltd,[4] where this Court allowed an appeal by an unsuccessful plaintiff (a nurse who had suffered psychiatric injury in her work place) was that the deterioration of that person's psychological state was apparent during the period in which she was mistreated by her supervisor.
[5] As Henry J has explained, at no stage during the relevant period of her employment did the appellant exhibit signs which warned of the possibility of psychiatric injury. The trial judge was correct to hold that signs that she was under stress at work were insufficient to make the risk of a psychiatric injury reasonably foreseeable, so as to result in the relevant duty of care.
[6] The findings of fact from which that legal conclusion follows are not affected by any apparent error. As Henry J has also explained, the trial judge's particular consideration of whether the appellant had been "badgered, bullied and mobbed" ultimately did not divert his Honour from addressing correctly the question of whether the requisite duty of care was owed.
[7] It is unnecessary then to consider whether the trial judge was incorrect on the questions of a breach of duty of care and whether a breach was causative of the appellant's injury. The appeal should be dismissed with costs.
[8] HENRY J: Maureen Robertson was an endorsed enrolled nurse working at the Gold Coast Hospital. She alleged that she suffered a chronic adjustment disorder with mixed anxiety and depressed mood because of events in the workplace.
[9] Her injury was said to have resulted from the conduct of her work colleagues, summarised at the outset of paragraph 3 of her amended statement of claim as follows:
[6]
"3. Over a period of time during 2011 and 2012, the plaintiff was badgered, bullied and mobbed by some of her colleagues at work. Some of the registered nurses were quick and short-tempered with her and they kept changing her job roles. At times she was allowed to hand out medications and at times she was not allowed to. False allegations were made against her and she was humiliated and abused, both publicly and privately. ..."[5]
[7]
[10] She blamed her injury on her employer's alleged breach of its duty of care towards her in the workplace and claimed damages "for negligence, breach of contract, breach of duty and/or breach of statutory duty".[6]
[11] Her claim was dismissed after a District Court trial, the learned primary judge finding:
[8]
"(a) Ms Robertson was not bullied, badgered or mobbed except, perhaps, having been bullied on two occasions, well separated in time and circumstances;
[9]
(b) the defendants owed no duty of care to Ms Robertson to protect her from psychiatric injury;
[10]
(c) even if the defendants did owe Ms Robertson such a duty, they have not breached it;
[11]
(d) even if the defendants owed and breached such a duty, Ms Robertson has not satisfied her onus of proving that the breach caused her illness."[7]
[12]
[12] Ms Robertson now appeals that decision. Her nine grounds of appeal involve complaints of error in respect of the four issues with which those four findings are concerned, namely the:
[13]
[13] Before dealing with the grounds in the context of discussing those issues it is convenient to first deal with the nature of the pleaded case and a discrete ground connected with it, followed by an overview of the facts.
[14]
[14] Ms Robertson pleaded she was employed by the first defendant or alternatively the second defendant. The defendants admitted both alternatives and it was not considered necessary to resolve the ambiguity.
[15] Ms Robertson pleaded at paragraph 2(e) of the amended statement of claim:
[15]
"It was a term of the contract of employment between the plaintiff and the defendants and/or it was a duty of the defendants:
[16]
(i). To take all reasonable precautions for the plaintiff's safety while she was engaged in carrying out her assigned work;
[17]
(ii). Not to expose the plaintiff to any risk of damage or injury which they knew or ought to have known;
[18]
(iii). To take reasonable care that the place at which the plaintiff carried out her assigned work was safe;
[19]
(iv). To provide and maintain a safe and proper system of work;
[20]
(v). To have in place a reasonable system for investigating and dealing with complaints;
[21]
(vi). To provide reasonable and consistent instructions to employees, including the plaintiff;
[22]
(vii). To treat employees, including the plaintiff, with reasonable respect and dignity;
[23]
(viii). To instruct and require employees to treat their colleagues, including the plaintiff, with reasonable respect and dignity;
[24]
(ix). To prevent employees, including the plaintiff, from being harassed and/or bullied in the work place."[8]
[25]
[16] The defendants denied that allegation, pleading any implied terms of the contract were "not absolute as alleged" and rather "were predicated upon the [d]efendants taking reasonable care and reasonable steps".[9] In a similar vein, the defendants pleaded any duties of care owed "were conditioned upon the exercise of reasonable care only".
[17] The amended statement of claim pleaded the causation of injury in two paragraphs. Firstly, it was pleaded at paragraph 5:
[26]
"5. As a result of the matters pleaded in the previous paragraphs, the plaintiff has sustained a chronic adjustment disorder with mixed anxiety and depressed mood. The plaintiff has suffered personal injuries, loss and other damage."[10]
[27]
[18] The reference to the causative matters there pleaded could only be a reference to paragraph 3 of the amended statement of claim, the introduction to which was quoted at the outset of these reasons. Paragraph 3 went on to list the particulars of 19 workplace incidents involving the conduct of Ms Robertson's work colleagues towards her, particularly involving the topic of her incompetence. The incidents were not pleaded as a complete list.
[19] The second way in which the amended statement of claim pleaded the causation of injury was to allege at paragraph 6:
[28]
"The plaintiff's injuries, loss and other damage have been caused by the breach of contract, negligence and/or breach of duty of the defendants, [its] servants and/or agents, the particulars whereof are as follows:-
[29]
(a) Failing to take any or any adequate precautions for the plaintiff's safety while she was engaging in carrying out her assigned work;
[30]
(b) Exposing the plaintiff to a risk of damage or injury which they knew or ought to have known and which could have been avoided by reasonable care;
[31]
(c) Failing to have in place a reasonable system for investigating complaints;
[32]
(d) Failing to prevent and/or protect the plaintiff from badgering, bullying, mobbing and harassment in the workplace;
[33]
(e) Requiring or permitting the plaintiff to work as a [supernumerary] when they knew or ought to have known that the plaintiff had been bullied and that requiring her to work under such conditions would be humiliating and degrading and would increase the risk of her being exposed to injury;
[34]
(f) Failing to provide and maintain any safe or proper system of work; and
[35]
(g) Failing to take any or any adequate action to protect the plaintiff's health when they knew, or ought to have known, that the bullying was continuing and that false accusations injurious to the plaintiff's health, had previously been made against her."[11]
[36]
[20] The effect of the amended statement of claim was that Ms Robertson's psychiatric injury was said to have resulted from the workplace incidents pleaded non-exhaustively in paragraph 3 and her injury was also said to have been caused by her employer's breaches pleaded in paragraph 6. Yet it was not apparent from the pleaded facts how the conduct by Ms Robertson's work colleagues alleged in paragraph 3 gave rise to the breaches by Ms Robertson's employer alleged in paragraph 6.
[21] The learned trial judge was troubled by the state of Ms Robertson's pleaded case. His Honour called the matter on for review on 11 March 2020, the trial being due to commence on 16 March 2020. His Honour raised some logistical issues with counsel and also indicated he was "concerned in particular, with the way this statement of claim is brought".[12] He explained he wanted to know what facts Ms Robertson relied on as giving rise to the alleged duties, particularly the duty to avoid psychiatric injury. His Honour's concern about that issue was well founded in that it went to the factual foundation for the liability the trial judge would be urged to find, yet that factual foundation was not clearly pleaded.
[22] His Honour provided the parties with a document he had authored, headed "Particulars of statement of claim required".[13] It listed particulars required in respect of paragraphs 2(e), 3 and 6. For paragraph 2(e) it sought particulars of the facts relied on to show the defendants had the duties alleged. For paragraph 3 it sought greater detail of the pleaded incidents as well as particulars of the incidents which had not been pleaded. For paragraph 6 it sought various particulars of the breaches, including what precautions the defendants should have taken and the facts relied on to show the defendants knew or should have known of the paragraph 3 incidents.
[23] The parties informed his Honour that particulars had been provided of paragraph 3.[14] The defendant's counsel otherwise appeared to agree with his Honour's concerns.[15] Ms Robertson's counsel did not argue against his Honour's request that she file particulars of the kind sought in respect of paragraphs 2(e) and 6.
[24] Such particulars were filed. The particulars to paragraph 2(e) identified three alternative points in time - 19 December 2011, 29 March 2012 or 22 May 2012 - by which a duty of care to avoid the risk of psychiatric injury to Ms Robertson arose.
[37]
Did the trial judge err in requiring particulars?
[38]
[26] Appeal ground nine complains the learned trial judge erred:
[39]
"In requiring the Plaintiff to provide particulars not requested by the Defendants shortly before the trial where his Honour noted this was for reasons of procedural fairness for parties."
[40]
[27] Ms Robertson advances three arguments in support of that ground. The first argument is that his Honour did not have the power to require the provision of particulars of his own volition.[16] It is a novel argument in light of the procedural rules and practice directions which enabled the increased proactivity of the courts in pre-trial management of cases in recent decades.[17] The argument contemplates that the only means by which a court can order the provision of particulars is on the application of a party. This overlooks that the sufficient pleading of a case not only puts each party on notice of the case to be met but also sets the boundaries of the issues to be tried.[18] It would be a curious constraint on the power of the trial judge, as the person responsible for determining those issues according to law, if the judge's power to require inadequacy in a pleading to be remedied by amendment or provision of particulars, was conditional on the application of a party. Once a trial is underway it could scarcely be thought a judge who realises more particularity is required in order to properly identify the case to be determined, would not have the power, as an incident of the judge's inherent power to manage the conduct of the trial appropriately, to require the provision of such particularity.[19] Why would that inherent power not embrace the period in which the judge is seized of the matter in the period leading up to the trial? If there lingered any doubt that it does, it would be removed by r 367(1) Uniform Civil Procedure Rules1999 (Qld), which provides:
[41]
"The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules."
[42]
[28] This affirmation of the existence of the relevant power should not be taken as encouraging its use. The broad discretion conferred by r 367(1) should be exercised with due deference to the consideration that in our adversarial system it is for the parties to decide what the issues for contesting are and that the allocated trial judge will not always know what the parties are resolving between each other prior to the start of the trial. Likewise, it should be borne in mind that pre-trial intervention increases the costs of the cause for the parties and that obscurities in the state of the pleadings may be clarified during the plaintiff's opening of the case at trial. Such considerations will bear upon whether self-initiated judicial intervention by pre-trial order or direction is "appropriate" in the circumstances of a particular case.
[29] The second argument in support of the complaint of error is of procedural unfairness, namely that Ms Robertson's counsel had no prior notice of or opportunity to prepare an argument in respect of his Honour's request.[20] The argument is without substance. Ms Robertson's counsel did not raise it at the time of the appearance at the review on 11 March 2020. Moreover, there followed an interregnum of five days before the trial commenced on 16 March 2020, apparently with legal argument.[21] Ms Robertson's counsel thus had ample further time to consider the matters his Honour had raised and ample further opportunity to make submissions about them.
[30] The third argument in support of the complaint of error is that Ms Robertson was "forced to conduct her case on a different, and more restricted basis, from the way it had been prepared".[22] In support of this submission it was highlighted that the learned trial judge said that Ms Robertson would be held to the particulars of her pleaded case. That a party should be so confined is, in the absence of the parties' mutual departure from the pleadings, an unremarkable reflection of the ordinary rules of engagement at trial.[23] It adds nothing to the argument. The premise of the argument is that the provision of better particulars of the case to be advanced must in some unexplained way have altered or restricted the case which Ms Robertson's representatives had prepared to conduct. The premise is flawed because, unless it was intended to impermissibly use obscure pleadings as a cover for the conduct of a surprise case at trial, the provision of greater particularity about the case which was to be conducted should not have altered or restricted the case Ms Robertson's representatives had prepared to conduct.
[43]
[33] Ms Robertson had a lengthy work history in the field of assistant nursing before qualifying as an endorsed enrolled nurse (EEN) in 2006 at the age of 52. In the hierarchy of nursing her new qualification meant she could administer medication and left her subject to the supervision of registered nurses.
[34] Ms Robertson had been working as an assistant in nursing at the Gold Coast Hospital prior to gaining her qualification and continued in employment there as an EEN. She commenced working as an EEN in the cardiology unit of the hospital in 2008. That unit neighboured the coronary care unit (CCU). While those units were separate wards, they shared a medication room and monitoring equipment and their nurses interacted with and helped each other.
[35] Ms Robertson worked in the cardiology unit on nightshift from the commencement of her time there through to and including the commencement in 2011 of the alleged incidents of badgering, bullying and mobbing. There was little call for her to administer medications when on nightshift.
[36] It is apparent from his Honour's reasons that Ms Robertson's evidence about some of the more extreme alleged features of those incidents went beyond or was inconsistent with Ms Robertson's own notes about them. His Honour's findings of fact involve repeated rejection of the more extreme aspects of the allegations. The incidents as his Honour found them to be fell well short of having the character complained of. Indeed, they appear to have been unremarkable workplace responses to managing concerns regarding Ms Robertson's competency, particularly in administering medication.
[44]
[37] The first incident complained of was that on 1 April 2011, when a cardiology unit patient died, Ms Robertson was not offered any comfort, although a registered nurse was offered comfort in her presence.
[38] Ms Robertson had assisted the patient from the toilet to bed shortly before the patient died. No one appears to have been present when the patient died and the fact of the death was detected in the adjacent CCU where the patient was being monitored. Of the coronary unit's two registered nurses, one, a young nurse, Ms Codd, was on a break and the other was elsewhere in the ward. The CCU monitoring nurse, Ms Brunton, went to the patient, found the patient to be dead and a medical alarm known as Code Blue or MET (for Medical Emergency Team) was called. When Ms Codd returned from her break to learn the Code Blue had been called and it related to one of her patients, she was very upset, not having previously experienced one of her patients dying on her shift. Ms Brunton and the other registered nurse on duty comforted Ms Codd.
[39] The learned trial judge accepted Ms Robertson may have felt upset and excluded but noted nobody knew Ms Robertson had had the last interaction with the patient and might be upset. His Honour also noted that after things had calmed down one of the registered nurses suggested Ms Robertson take a break. His Honour found there was no deliberate exclusion of Ms Robertson.
[40] None of the other incidents complained of are similar to this one. Much was made of this incident in the appellant's submissions, it being emphasised that merely because it did not involve deliberate exclusion or deliberate upsetting of Ms Robertson did not remove its upsetting effect on Ms Robertson. That is correct. However, there was no evidence in the facts as found to suggest it occasioned any material apparent upset, nor was there evidence of Ms Robertson complaining of any material effect on her to others in the workplace.
[45]
4-6 April 2011 - Accusation of incompetence with insulin
[46]
[41] Ms Robertson claimed that on 6 April 2011 she was abused and accused of incompetence by registered nurse Ms Harvey.
[42] The learned trial judge found that the day before the incident Ms Harvey had already reported to the nurse unit manager (NUM), Ms Fraser, that on the previous evening, 4 April 2011, she had worked with Ms Robertson who did not know how to read an insulin chart, did not know how to give insulin correctly, had drawn up the wrong amount (double the amount), did not know how to administer the drug Clexane and had demonstrated other serious misunderstandings of relatively standard procedures.
[43] His Honour found Ms Fraser appointed Ms Harvey to educate Ms Robertson during the dayshift of 6 April 2011. In supervising Ms Robertson during that shift, Ms Harvey noticed Ms Robertson drew up 25 units of insulin for a patient who had been prescribed 24 units and took the syringe from Ms Robertson, saying she either needed her eyes checked or that she was incompetent. His Honour accepted Ms Harvey genuinely believed that in the absence of difficulties with her eyesight, Ms Robertson was not sufficiently competent to administer medicines but observed it was not appropriate to tell her she was incompetent.
[44] This represents one of only two occasions where his Honour considered there had been any degree of inappropriate conduct by staff towards Ms Robertson.
[47]
[45] Ms Robertson claimed that during a performance improvement plan meeting the following day, the NUM, Ms Fraser, told her people had been complaining about her, asked when she expected to retire and accused her of having insufficient knowledge of medications.
[46] The performance appraisal and development plan document recorded Ms Robertson required some further education with medication awareness, rhythm interpretation and general clinical skills. His Honour noted Ms Robertson's own diary note of the meeting recorded Ms Fraser had told her that her knowledge of medication was not good enough. Indeed Ms Robertson's diary note said, "I know this".
[47] His Honour found Ms Fraser had explained to Ms Robertson she had come to know of her performance because people came to her with concerns and complaints about ward nurses. He also found that Ms Fraser did ask when Ms Robertson thought she might retire but had only done so in the innocuous context of a discussion of Ms Robertson's past illness and her career aspirations.
[48]
[48] Ms Robertson claimed that at the conclusion of her nightshift on 19 May 2011 she was prevented from giving a full handover presentation by registered nurse Ms Bagnall who allegedly cut her off by stating "Just the changes" or "Only the updates".
[49] His Honour found Ms Bagnall had come onto the morning shift after only concluding a previous shift 10 hours or so earlier. He found Ms Bagnall did ask Ms Robertson only to give her an update or just the changes from the previous evening about the patients. However he found that it was not done in a demeaning or belittling tone and occurred because she would not have needed to be told everything, given how recently she had been on shift.
[49]
11 August 2011 - Infusion pump and alleged abuse about observations
[50]
[50] Ms Robertson claimed that on 11 August 2011 she was abused and threatened by registered nurse Ms Naylor.
[51] The other registered nurse who came on shift that night was Ms Daly. Ms Daly had spoken to Ms Naylor, when Ms Naylor came on shift, about an infusion pump alarm which had been paused by Ms Robertson, although it was beyond the scope of Ms Robertson's practice to pause an infusion pump. It evidently attracted Ms Naylor's attention that infusion liquid had spilt onto the floor and not been removed.
[52] Later in the shift, at a time when Ms Robertson perceived the two registered nurses had been chatting and she had not had a break, Ms Naylor asked Ms Robertson to do Ms Naylor's patient observations. Ms Robertson responded in a somewhat harsh tone, words to the effect of, "Can't you do your own?" His Honour found that led Ms Naylor "to have words with Ms Robertson about the attitude she had displayed and the discussion, although short was heated". Ms Daly confirmed overhearing a conversation in which Ms Naylor asked Ms Robertson why she had spoken to her in such a manner. Ms Robertson accepted in cross-examination that an EEN speaking to a senior clinical nurse as she had might cause some friction, as it did on that occasion.
[53] His Honour did not express a concluded finding as to whether, as Ms Robertson alleged, Ms Naylor had said she was going to "take this" to Ms Fraser or Professor Williams, but found that even if it had been said, it had not been said as a threat and Ms Naylor had not abused Ms Robertson.
[51]
[54] Ms Robertson claimed that on 5 November 2011 she was humiliated in front of staff by Ms Harvey, when in giving a handover of a patient said to have an ST elevation, Ms Harvey sarcastically yelled, "You can't have worked that out on your own".
[55] His Honour found all that had in fact happened was that during the handover when Ms Robertson referred to a patient's ST elevation, Ms Harvey had asked how she had found that out, which Ms Robertson then explained. He found it was not inappropriate for a registered nurse such as Ms Harvey to find out how Ms Robertson came by the information.
[52]
[56] Ms Robertson alleged that at a meeting on 19 December 2011 she was erroneously accused of making a medication error, abused by Ms Naylor and falsely accused of incompetence in relation to a separate incident.
[57] The meeting was convened by Ms Naylor who was by then an acting NUM. It was also attended by Mr McPhee, the clinical nurse educator for cardiology, and Ms Koch, a union representative who was present because Ms Naylor had informed Ms Robertson she was entitled to bring a support person to the meeting. The meeting was focused upon concerns about Ms Robertson's knowledge and administration of medicines generally and gave rise to a performance improvement plan which Ms Robertson declined to sign later that day.
[58] At the meeting Ms Naylor referred to Ms Robertson having left fluid on the floor on the occasion of the infusion pump alarm episode of 11 August 2011. His Honour found that had been referred to in the context of Ms Naylor referring to Ms Robertson being rude to her on that occasion, possibly as part of a broader discussion of Ms Robertson's clinical performance generally. His Honour also found that one of the concerns discussed at the meeting included a particular allegation that Ms Robertson had made a medication error, which was disputed by Ms Robertson. Ms Naylor consequently spoke to the person who had informed her of the error and discovered the error had not been made by Ms Robertson. Ms Naylor in turn apologised to Ms Robertson for that error.
[59] These were not the sole issues raised at the meeting and Ms Robertson accepted she was not fully confident in her medication, knowledge and practice. She asserted she was not being supported by other nursing staff which made her feel lonely. It was agreed at the meeting that Ms Robertson would undergo further education by or under the direction of Mr McPhee over the following three months and that in the meantime she would not administer any medications except under supervision.
[60] His Honour accepted there was some tension between Ms Naylor and Ms Robertson at the meeting but rejected the allegation Ms Naylor had abused Ms Robertson. He noted that the meeting's discussion and the preparation and implementation of a new performance improvement plan were ways of supporting her.
[53]
19 December 2011 - First alleged point in time at which duty of care arose
[54]
[61] It will be recalled the particulars alleged a non-delegable duty of care arose by this date for the defendants to take all reasonable care to avoid the risk of psychiatric injury. In explaining his rejection of that allegation, his Honour noted the defendants' responsible officers were Ms Naylor as the NUM and Mr McPhee as the clinical nurse educator.[24] He noted there was no evidence that by 19 December 2011, or any subsequent occasion, Ms Naylor or Mr McPhee knew about Ms Robertson's complaints about the incidents of 1 April, 6 April, 19 May or 5 November. However, he noted, based on what Ms Robertson said she had told them at the meeting that they did know by that time that Ms Robertson felt lonely because she did not feel supported by any of the nursing staff and she was not confident in administering medications. His Honour did not consider that the raising of the erroneous allegation, which when denied resulted in Ms Naylor looking further into it and apologising for the error, was a circumstance which would give rise to a foreseeable risk of psychiatric injury. Indeed, his Honour noted that, to the extent it may have prompted any concern or distress, that would have been allayed not merely by the undertaking to look into it further but by the apology which then followed. His Honour also considered the bare fact that Ms Robertson was feeling unhappy in working with some of the other staff and that she was not confident that she could properly administer medications was not such as to give rise to a foreseeable risk of psychiatric injury.[25]
[55]
6 February 2012 - Ongoing concerns, lost confidence
[56]
[62] While not the subject of a complaint by Ms Robertson, there was a meeting on 6 February 2012, again involving Ms Naylor, Ms Robertson, Mr McPhee and Ms Koch.
[63] The meeting had been convened subsequent to a memorandum by Mr McPhee to Ms Naylor of 18 January 2012. In that memorandum he noted several staff had expressed concern about Ms Robertson's drug administration skills, listed areas of concern with Ms Robertson's practice, highlighted the relevant standards of medication administration for EENs which Ms Robertson did not meet and suggested there be a follow-up meeting at which they should explore the option of not allowing Ms Robertson to administer drugs until there was a dramatic improvement in safety and drug knowledge. The concerns raised in the memorandum were discussed at the meeting. Ms Robertson recalled indicating at the meeting that she had lost confidence and felt her ability to administer medications was often disregarded by other staff. She was told there was support by counsellors available and that she could speak to the director of nursing. Further education was also offered. The result of the meeting was that Ms Robertson would cease medication administration for three months.
[57]
[64] Ms Robertson claims that on 18 March 2012 she was falsely accused of incompetence in connection with her failure to call a MET, also known as a Code Blue.
[65] On the occasion in question registered nurses Ms Ashman and Ms Fox were dealing with a medical emergency in which a patient had lost consciousness and her heart had stopped beating. Ms Robertson came upon them while they were trying to put the patient onto the floor to do CPR. His Honour found Ms Ashman looked at Ms Robertson and said words to the effect of "I want a MET call and the guedels" (guedels are a device to prevent obstruction of a patient's airway). Ms Robertson went to get guedels but did not make the MET call. This was discovered when Ms Fox went out to check the monitor and get the resuscitation trolley, while Ms Ashman continued with CPR, and it was realised no alarms had gone off. In the meantime, fortunately, the patient regained consciousness and a heartbeat and a MET became unnecessary.
[66] His Honour found that while in retrospect it appeared Ms Robertson did not think she had been asked to call a Code Blue, it should have been obvious to her that she was the person most able to do so and that she had been requested to do so. Ms Ashman prepared a PRIME incident report - a report about an episode that may affect patient safety. There were reports requested from all nurses involved in the incident and Ms Ashman and Ms Fox, as well as Ms Robertson, complied. Ms Ashman's and Ms Fox's reports did not directly accuse Ms Robertson of incompetence. His Honour found the aftermath reporting to simply be part of a necessary course of conduct in the interests of patient safety and the proper administration of the hospital.
[58]
28 March 2012 - Accusation of incompetence on Code Blue
[59]
[67] Ms Robertson claimed that at a meeting, which likely occurred on 28 March 2012, she was falsely accused of incompetence by Ms Naylor and humiliated in front of other persons.
[68] The meeting once again involved Ms Naylor, Ms Robertson, Mr McPhee and Ms Koch. It had been convened by Ms Naylor to discuss the Code Blue incident of 18 March 2012. Ms Koch's memory of the meeting included that both Ms Robertson and Ms Naylor raised their voices in the course of the meeting and that when Ms Naylor put to Ms Robertson that it was no particular person's responsibility to call the code but a competent nurse would have done it, Ms Robertson became upset and started getting teary. His Honour noted Ms Robertson did not consider she was at fault at all and found it was not surprising in the circumstances that Ms Naylor made it very clear to Ms Robertson that she considered that a competent nurse would have called the code before doing anything else. It appears that the infusion pump episode of 11 August 2011 was again raised, specifically in reference to the liquid on the floor being a safety issue for patients. His Honour considered it likely Ms Naylor had raised that episode again in the context of discussing the primacy of patient safety which she considered Ms Robertson had again endangered by not making a MET call when asked to do so. His Honour characterised Ms Naylor's conduct at the meeting as involving stern words by a manager seeking to make clear her concerns about a nurse's competence and the importance of patient safety, preparatory to approving a plan to improve that competence.
[60]
29 March 2012 - Second alleged point in time at which duty of care arose
[61]
[69] It will be recalled the particulars alleged a non-delegable duty of care arose in the alternative by 29 March 2012 for the defendants to take all reasonable care to avoid the risk of psychiatric injury.[26] The material developments by this point in time compared to 19 December 2011, the first point in time at which a duty of care allegedly arose, were the meeting of 18 January 2012 and the Code Blue incident on 18 March 2012. His Honour noted that at the 6 February meeting Ms Robertson expressed feelings similar to those expressed in December 2011, namely that she had lost confidence and felt that her ability to administer medications was often disregarded.[27] However, he also noted that at the 6 February meeting Ms Robertson was offered both counselling and more education to assist her. His Honour noted that at the meeting of 28 March when the Code Blue incident was discussed and Ms Naylor in effect admonished Ms Robertson for not accepting her responsibility to have called the code, Ms Robertson told Ms Naylor and Mr McPhee that she was feeling unsupported and not being listened to and that she felt the victim at times.
[70] His Honour concluded:
[62]
"Again, I do not consider that, by 28 March 2012, Ms Robertson gave any signs to Ms Naylor and Mr McPhee that she was at a foreseeable risk of psychiatric injury. No doubt it was obvious that she felt stressed and upset and that she continued to feel that she was not getting support, but that does not of itself make such a risk foreseeable, particularly in circumstances where, having admonished her for, in the employer's view, not having performed her duties, she was offered more support and education in order to improve her competence. If her competence improved, one might reasonably have expected that her confidence and her relationships with other staff would also have improved."[28]
[63]
[71] On one construction of the pleaded case Ms Robertson complained that on 10 April 2012 registered nurse Ms Nicholls was told by Ms Hill, the acting NUM, that she needed to supervise Ms Robertson's administration of medication.
[72] His Honour accepted such information was conveyed but perceived no impropriety in the relevant NUM ensuring that nurses on duty knew Ms Robertson was not permitted to administer medications without direct supervision. He acknowledged it may have been embarrassing to Ms Robertson that the need for her to be so supervised had to be disclosed, but his Honour also observed it was a requirement Ms Robertson was working to overcome by undertaking further education and training and that supervision in her administration of medicines was part of that training. Further, Ms Robertson also informed Ms Nicholls that she had to be supervised in the administration of medication.
[64]
[73] Ms Robertson claimed that on 12 April 2012 she was spoken to by EEN Ms McDonald in a rude and condescending way.
[74] Ms Robertson's generalised evidence of this episode was that Ms McDonald "was going crook, speaking down to me". His Honour considered that in the absence of any evidence of what Ms McDonald actually said or did, he was not satisfied that Ms McDonald was rude or condescending to Ms Robertson.
[65]
May 2012 - Accusation of incompetence about low blood pressure #1
[66]
[75] Ms Robertson claimed that in May 2012 she was falsely accused of incompetence by a registered nurse called Rachel.
[76] It appears that in the course of a shift with Rachel, Ms Robertson noticed a patient had low blood pressure and asked if she should contact a doctor. Rachel indicated the patient had had low blood pressure all day, the doctor was aware of it, and to leave it with her. At the ensuing handover when Ms Robertson mentioned the patient's low blood pressure to Ms Coulter, Ms Robertson claimed that when Ms Coulter had looked at Rachel, Rachel had shrugged her shoulders. His Honour observed that if Rachel had shrugged her shoulders it may have been an attempt to indicate that Ms Robertson should go on and give her explanation or may have meant Rachel did not think it was necessary for Ms Robertson to explain further. In any event, his Honour found there was no evidence that Rachel accused Ms Robertson of incompetence.
[67]
15 May 2012 - Accusation of incompetence about low blood pressure #2
[68]
[77] Ms Robertson claimed that on 15 May 2012 she was impliedly accused of incompetence by registered nurse Ms Brumby.
[78] The alleged event occurred at the close of a shift during which Ms Robertson had been caring one-on-one for a patient with low blood pressure. Ms Robertson alleged that while she was waiting for her replacement, a registered nurse for the new shift, Ms Brumby, marched towards the room where Ms Robertson was and said "What's this about her blood pressure?" in an angry tone. Ms Robertson allegedly did not reply and Ms Brumby marched out of the room. The learned trial judge concluded the incident did not occur as described by Ms Robertson and that while Ms Brumby asked Ms Robertson something about the patient's blood pressure, Ms Brumby did not march in nor adopt an aggressive tone such as to imply an accusation of incompetence.
[69]
22 May 2012 - Global assessment, calculation tests and education
[70]
[79] In accordance with her performance improvement plan, Ms Robertson said she attended a number of educational workshops between 13 February 2012 and 16 May 2012. This included a medications course, although it did not cover cardiac medications.
[80] On 22 May 2012 registered nurse Ms Seehusen undertook a global assessment of Ms Robertson's nursing skills, having been tasked to do so by Mr McPhee or Ms Naylor as an independent person to assess Ms Robertson's overall competence. Ms Robertson received the bare minimum pass score. Ms Robertson testified that in the ensuing feedback session with Ms Seehusen, she was told by Ms Seehusen that Ms Robertson was not up to par and that Ms Seehusen wanted more from her.
[81] Mr McPhee then had Ms Robertson complete a medication calculation test. She only completed 15 of the 20 questions in the first attempt, but when given a further opportunity using a calculator, she completed all questions correctly.
[71]
22 May 2012 - Third alleged point in time at which duty of care arose
[72]
[82] This is the third date by which it was alleged in the alternative that a non-delegable duty of care arose for the defendants to take all reasonable care to avoid the risk of psychiatric injury.
[83] The argument in support of the allegation was, in essence, that having been treated as an incompetent nurse for over a year but now having been shown to be competent, it would be foreseeable, having had that positive assessment, that Ms Robertson might suffer a psychiatric injury if her supervisors and fellow staff did not accept that she was competent and treat her as such. The argument overlooks that Ms Robertson had to have been well aware that, against an historical background of competency concerns, scoring the lowest bare pass mark in an assessment where the assessor told her she needed to improve, was not of itself sufficient to allay the competency concerns. As his Honour's reasons noted:
[73]
"Notwithstanding this one-off assessment of her performance on one day, experience (including the direct experience of Ms Naylor and Mr McPhee) indicated that she was not yet consistently sufficiently competent to be permitted, especially, to administer medicines without supervision."
[74]
[84] His Honour considered that the circumstances did not give rise to a foreseeable risk of psychiatric injury.[29]
[75]
[85] Ms Robertson claimed that on 5 June 2012 she was given conflicting directions by Ms Naylor, the first such direction implying incompetence.
[86] This event was alleged to have occurred at a meeting between Ms Robertson, Ms Naylor and Mr McPhee. The learned trial judge found that at the meeting Ms Robertson was told she could not administer medications, but shortly afterwards was told she could not do so without supervision from a registered nurse. His Honour considered this was merely a clarification of possibly inadequate communication or miscommunication. His Honour noted Ms Robertson could have been under no misapprehension in consequence of the meeting that she was able to administer medications under supervision of a registered nurse.
[76]
[87] Ms Robertson claimed that she was abused by a registered nurse Ms Kennedy on what must have been 13 July 2012.
[88] On her afternoon shift on 12 July 2012 Ms Robertson had been asked to dress a patient's wound, but did not do so because the patient was refusing to bend his leg and she did not then want to press the matter. At the handover to the nightshift she indicated she would dress the wound the following morning. She did not do so. When Ms Kennedy commenced her shift in the afternoon, she approached Ms Robertson and asked if she had done the dressing. His Honour observed it was an understandable enquiry, given Ms Robertson had said she would do it in the morning. He accepted Ms Kennedy may have expressed understandable irritation when Ms Robertson told her the task had not been done, but his Honour did not conclude there was any abuse or aggression.
[77]
27 July 2012 - Not administering medications unsupervised
[78]
[89] Ms Robertson claimed that on 27 July 2012 she was abused and accused of incompetence by Ms Naylor.
[90] On this occasion in the course of a supervised medication round with Ms Robertson, Ms Naylor queried her regarding what she was doing about medications and Ms Robertson revealed that she was giving them. In the course of this conversation Ms Naylor informed Ms Robertson that some nurses were concerned Ms Robertson had a poor short-term memory because she seemed to look up medicines more frequently than should be necessary. Ms Naylor told Ms Robertson she was not meant to be administering medications on her own and Ms Robertson responded that she was. Ms Naylor told her she was not to give medications unsupervised. The learned trial judge found Ms Robertson had no basis for believing she had been authorised to give medications unsupervised.
[79]
[91] Ms Robertson claimed that on 17 August 2012 she was abused by registered nurse Ms Codd.
[92] Ms Robertson had been taking observations of a patient who had come to the ward from the emergency department and the patient indicated he had chest pain. She went and told Ms Codd. Ms Codd asked if the patient had come to the ward with chest pain. Ms Robertson said that the patient had got chest pain as she was doing his vitals. Ms Codd said, "So he had chest pain on arrival". Ms Robertson said, "No, he was in our bed, I was doing vitals and that's when he got chest pain." Ms Codd responded, "Hang on, I don't understand" and, as his Honour found, briefly waved her hands in the air, perhaps out of frustration, while trying to get a more detailed explanation. Ms Robertson further explained what had occurred and, as Ms Robertson recorded in her diary, Ms Codd was "alright then". His Honour found Ms Codd did not abuse Ms Robertson as alleged, although he observed it was inappropriate to have waved her hands in frustration and that she could have simply directly asked Ms Robertson to give more detail.
[93] This represents the second of only two occasions where his Honour considered there had been any degree of inappropriate conduct by staff towards Ms Robertson.
[80]
[94] Registered nurse Ms Mohr undertook a global assessment of Ms Robertson on 28 August 2012. Ms Mohr was then an educator whose role included doing assessments of nursing staff. His Honour accepted she conducted her assessment in a completely independent capacity. Ms Mohr's report of her assessment marked a number of criteria as being unsatisfactory. Ms Mohr reviewed her assessment with Ms Robertson at the end of the session and left her assessment report with Ms Naylor, having a private discussion with her when giving her the document.
[95] His Honour rejected Ms Robertson's claims that in that meeting Ms Mohr had told her that if she had her way she would walk her off the ward right now and that she was a terrible nurse, noting the allegations were not recorded by Ms Robertson in her diary or mentioned to anyone, not even her lawyers, her psychiatrist or WorkCover. His Honour noted that Ms Robertson agreed that if the matters in Ms Mohr's report were true, it would be mandatory for the hospital to refer her to the Australian Health Practitioner Regulation Agency (AHPRA).
[81]
[96] Subsequent to Ms Mohr's report Ms Naylor wrote to Ms Robertson on 30 August 2012 confirming she was not to dispense medications unsupervised.
[97] On 3 September 2012 Ms Naylor provided a detailed referral of Ms Robertson to AHPRA. In consequence of that referral AHPRA ultimately accepted undertakings from Ms Robertson in April 2013 that she would only work under the supervision of a registered nurse approved by AHPRA, would undertake further education addressing her clinical competence in safe medication administration, and would provide reports from her supervisor addressing her "fitness and competence to practise" after one and three months from the undertakings.
[98] While Ms Robertson started undertaking the required educational programs, she testified she did not complete them before she became unable to do so or to work due to her psychiatric condition.
[99] Ms Naylor made a second referral to AHPRA on 4 June 2013 for reasons which are not entirely clear, given it was largely a duplication of the earlier referral.
[82]
[100] Ms Robertson commenced working in the acute medical unit at Robina Hospital in October 2012, having transferred there on a 12-week placement.
[101] A global assessment conducted while she was there on 18 December 2012 recorded she was competent in one of eight competency units but only at advanced beginner level for the rest. The assessment concluded Ms Robertson did not display a level of nursing practice commensurate with an endorsed enrolled nurse, but rather functioned at an advanced beginner level. The assessor noted Ms Robertson was not an independent practitioner who could adapt practice readily to manage complex situations.
[102] Ms Robertson's secondment to Robina ended in early January 2013, but when she was due to return to Gold Coast Hospital on 7 January she rang in sick, obtained a medical certificate and did not return to work thereafter.
[83]
[103] In January 2014 at AHPRA's request, Ms Robertson undertook a psychological assessment to determine if she had a cognitive or psychological impairment that could detrimentally affect her capacity to practise. The psychologist noted no indications to suggest any difficulties she had exhibited were in any way due to a cognitive deficit or incapacity. She was not said to suffer from any cognitive or mental impairment, disability, condition or disorder that detrimentally affected or was likely to detrimentally affect her capacity to practise as an EEN.
[84]
[104] It will be recalled that paragraph 3 of the amended statement of claim alleged Ms Robertson was "badgered, bullied and mobbed" by her work colleagues. His Honour found, with two exceptions, that none of the above-described incidents had that quality.
[105] The two exceptions were Ms Harvey's conduct towards Ms Robertson on 6 April 2011 and Ms Codd's conduct towards Ms Robertson on 7 August 2012. His Honour observed the behaviour of those nurses on those two occasions was, in some respects, inappropriate and, had it been engaged in repeatedly, it may have amounted to bullying and badgering, and perhaps in combination may have constituted mobbing. However, his Honour noted those two incidents were isolated and separated by a long period and concluded he was not satisfied that the defendants' employees or the defendants themselves had bullied, badgered or mobbed Ms Robertson. His Honour concluded as a consequence of that finding that Ms Robertson failed in her claim against the defendants. He noted, however, that if he was wrong in that conclusion, he was in any event going to proceed to consider the issues of duty, breach and causation.
[106] Appeal ground six complains his Honour erred:
[85]
"In finding the plaintiff was not bullied, badgered or mobbed, except perhaps for having been bullied on two occasions".
[86]
However, no argument was advanced to demonstrate error in the fact finding underlying that conclusion. Ground six must fail because it has not been demonstrated that it was not open to his Honour to have found (with minor exception), based on the facts as his Honour found them to be, that Ms Robertson was not bullied, badgered or mobbed.
[87]
[107] Appeal ground six challenged that finding, rather than complaining that finding was of itself no proper basis to conclude the claim had failed. If it had been advanced in the latter way such a complaint would have been literally correct, but it would have been an incomplete characterisation of his Honour's reasons. The language of the finding reflected the way in which paragraph 3 of Ms Robertson's amended statement of claim had summarised the conduct of Ms Robertson's work colleagues towards her. That summary description created a false issue, resulting in his Honour, after detailed fact finding in respect of each incident, additionally expressing a view as to whether the facts of each incident, as he found them to be, evidenced bullying, badgering or mobbing. That additional exercise was unnecessary. It was the fact-finding to be undertaken by his Honour about the events complained of, rather than the summary description of their character, which mattered. That fact finding mattered to whether a duty was owed and whether it had been breached. His Honour's conclusion that the claim failed, by reason of the failure to have proved the bullying, badgering and mobbing, adopted the shorthand nomenclature used in the pleading but in substance it reflected the upshot of his Honour's detailed fact finding. That detailed fact finding, which was not disputed on this appeal,[30] did not accept the more egregious alleged facts which Ms Robertson's case necessarily relied upon in order to elevate it from a series of unremarkable workplace events to a case in which the defendants knew or should have known Ms Robertson was at risk of psychiatric injury.
[108] This had the inevitable practical consequence that Ms Robertson's case could not succeed. That is because, as explained below, on the detailed fact finding of his Honour, the posited duty was neither owed nor breached. It is not because, as the appellant contended, his Honour subsequently disregarded the facts of the incidents because he had not found they amounted to badgering, bullying or mobbing. As will become apparent, while his Honour did not accept (with minor exception) that there had been acts meeting such descriptions, his subsequent reasoning did have regard to the relevant facts of the incidents, as he had found those facts to be.
[109] For these reasons, the outcome of the appeal would be no different even if appeal ground six were assessed as a complaint that the finding (with minor exception) that Ms Robertson was not bullied, badgered or mobbed was an erroneous basis to conclude the claim had failed and in light of that error this court proceeded to reach its own conclusion based on the undisturbed detailed fact finding of the learned trial judge.
[88]
[110] The judgment of the plurality in Koehler v Cerebos (Australia) Ltd[31] emphasised that in cases alleging psychiatric injury caused by an employer's breach of duty the inquiry should begin with identifying the content of the duty of care, not with focussing only upon questions of breach of duty.[32] Their Honours observed:
[89]
"The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions".[33]
[90]
[111] In the present case there was no evidence of the terms of any contract of employment between the parties. While Mrs Robertson's claim did include reliance on a breach of statutory duty, the statutory duty relied upon was not articulated in the pleadings or submissions. There was admittedly reference to provisions of Part 8 Workers' Compensation and Rehabilitation Act2003 (Qld) but these provisions have application in the assessment of whether there has been a breach of duty and do not create a duty.
[112] The content of the duty was not the subject of any common ground. The duties pleaded at paragraph 2(e) of the amended statement of claim were recited above. In the main they variously refer to the duty to provide a safe system of work and provide some descriptions of what might be thought to be the consequential qualities of a safe system of work, however some are erroneously cast as absolute obligations. The defendants pleaded in response that any duties of care owed "were conditioned upon the exercise of reasonable care only". That is correct. It is well settled that an employer's duty to take "reasonable care" to avoid injury to employees includes an obligation to take "reasonable steps" to provide a safe system of work.[34]
[113] Ms Robertson purported to provide particulars of the "facts relied upon to show that the defendants had in contract and/or in common law the duties as alleged in paragraph 2(e)".[35] Many of those particulars went to the facts of what allegedly occurred and the defendants' alleged state of knowledge of it, suggesting they were facts tending to show a breach of a duty of care, not merely the existence of a duty of care.
[114] That seemingly blurred purpose reflects the practical reality that facts informing the nature and scope of duty sometimes overlap with those informing whether there has been a breach. That is because the nature and scope of the employer's duty may itself vary depending upon what the employer, or those for whom the employer is vicariously liable, knows or should reasonably have foreseen regarding the particular employee in question.
[91]
"The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. ... [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned."[39]
[92]
[116] In the present case the nature and extent of work being done by Ms Robertson was not unusual. This was not, for example, a case in which she had been required to work unusually onerous hours or perform unusually onerous patient treatment or patient management tasks, such that the extreme impost of work on her would have made psychiatric injury to her reasonably foreseeable from the perspective of her employer. Nor, in light of the trial judge's findings, was this a case in which Ms Robertson was subjected to a pattern of bullying or harassment by work colleagues, let alone a pattern her employer should have been aware of.
[117] What was known by her employer, or at least those for whom it was vicariously liable, was that concerns were raised regarding Ms Robertson's competency and that steps were taken to address those concerns. In light of his Honour's fact finding, the real issue became whether the methods of raising and addressing those concerns or Ms Robertson's reactions thereto meant that psychiatric injury to her was reasonably foreseeable from the perspective of her employer. There were two determinative difficulties for Ms Robertson's case in this context.
[118] Firstly, Ms Robertson did not exhibit or articulate signs to suggest she was so materially distressed or effected that psychiatric injury to her was reasonably foreseeable in the absence of greater than ordinary care being taken. That is not to suggest the experience of having her competency raised and addressed as a concern would not to some degree have been stressful and upsetting. It likely would be for most employees. The point though is that the degree of stress or upset exhibited by her was not such as to suggest such a degree of vulnerability that psychiatric injury to her was reasonably foreseeable.
[119] Secondly, the methods by which concerns as to Ms Robertson's competency were raised and addressed were not so unusual or extreme as to suggest to her employer that psychiatric injury was reasonably foreseeable. The competency issues were raised in ordinary ways directly with Ms Robertson and with the relevant line supervisors who in turn deployed the employer's system of performance management to address the competency issues. This included the approach of requiring Ms Robertson to administer medication only under supervision, further education and further performance review meetings. These were all ordinary systemic measures for safely addressing the concerns regarding Ms Robertson's competence.
[93]
"[343] I do not consider that these facts gave rise to a foreseeable risk of psychiatric injury. They gave rise to a risk of ongoing stress, given the hospital's insistence that she continue to be supervised, but that supervision included ongoing education on the ward that had the prospect of Ms Robertson overcoming the concerns by demonstrating her knowledge and competence."[42]
[94]
[121] His Honour thereafter moved at [344]-[345] to dispense with an argument by Ms Robertson's counsel that the hospital did not carry out any investigations as they should have. That argument was apparently prompted by one of the defendants' arguments, based on State of New South Wales v Paige,[43] followed in Govier v The Uniting Church in Australia Property Trust (Q),[44] that an employer has no duty to an employee when undertaking an investigation into that employee's conduct of his or her duties to avoid a foreseeable risk of psychiatric injury arising from the investigation.
[122] Appeal ground one alleges his Honour erred:
[95]
"In finding that the Defendants did not owe the Plaintiff a duty of care to avoid foreseeable risks of psychiatric injury at Reasons [345]".
[96]
[123] Argument in support of this ground seemed to assume paragraph [345] of the reasons involved an acceptance of the defendants' Paige-based argument and that such acceptance was essential to the conclusion the defendants had no duty to take reasonable care to avoid psychiatric injury to Ms Robertson. Neither assumption is correct.
[124] After his Honour's conclusion at [343] his Honour continued:
[97]
"[344] Ms Anderson submitted that the hospital did not carry out any investigations, either of the allegations against Ms Robertson or of her competence. I disagree. Concerns about her competence were raised by a number of nurses on a number of occasions. As a result, her employer called her in to discuss them and decided that it would take steps to assess her and then to educate and support her in her practice. The hospital did not have a duty to Ms Robertson, on each occasion that nursing staff gave its management details of concerns they had about her competence, to conduct a formal or detailed investigation into the concerns, to see if they were justified. Indeed, I cannot see what more the hospital could have done, apart from calling in each nurse to explain the events and their consequent concerns in more detail. It had no duty to do that. Ms Robertson did not, in any event, demonstrate how that would have changed the outcome that the defendants continued to have genuine concerns about her competence as an EEN.
[98]
[345] In respect of all these occasions, I consider that the hospital, as Ms Robertson's employer, was entitled to review Ms Robertson's practice and to decide for itself whether she was able competently and consistently to carry out the duties of her employment. That is what it was doing at all times from 19 December 2011. Even if there was a foreseeable risk that those actions might cause Ms Robertson's psychiatric injury, the hospital had no duty of care to take reasonable steps to avoid such an injury if it were to arise from its reasonable steps in investigating, assessing, educating and, where it considered it necessary, admonishing her where she did not perform her duties properly.
[99]
[346] Therefore, I find that the defendants did not owe the plaintiff the posited duty of care at any time."[45]
[100]
[125] The conclusion at [346] followed a series of conclusions, including the conclusion at [343] that the facts did not give rise to a foreseeable risk of psychiatric injury. The grounds of appeal do not expressly challenge the finding at [343]. The practical effect of his Honour's reasons, by the point of the finding at [343], was that psychiatric injury to the particular employee was not reasonably foreseeable and this was therefore not a case in which foreseeability of psychiatric injury to a particular employee broadened the nature and scope of the employer's duty of care to engage the alleged duty to avoid psychiatric injury. This amply justified his Honour's finding at [346] of his reasons, that "the defendants did not owe the plaintiff the posited duty of care".[46] It follows the assumption that [345] of the reasons was essential to the conclusion the defendants did not have the posited duty is wrong.
[126] As to the assumption there was an acceptance of the defendant's Paige-based argument at [345], it is not apparent there was such an acceptance. His Honour had discussed Paige and Govier in an earlier discussion of legal principles but did not refer to them again. His Honour's reasoning in [345] was, "Even if there was a foreseeable risk" of psychiatric injury, "the hospital had no duty of care to take reasonable steps to avoid such an injury if it were to arise from its reasonable steps in investigating, assessing, educating and ... admonishing her where she did not perform her duties properly" (emphasis added). Rather than this being a reference to the defendant's Paige-based argument it appears more likely to be a response to arguments about the reasonableness of steps the hospital took to investigate and address competency concerns. But even it was the former, the repeated use of "if" in that context shows his Honour neither needed to arrive at, nor did he in fact arrive at, a concluded view regarding the defendants' Paige-based argument. The use of the word, "Therefore", at [346] does not suggest to the contrary - it appears to be a general reference to the entire preceding analysis which commenced at [327] under the heading, "Did the circumstances alleged give rise to a duty?". In any event, the matters discussed at [345], attracting appeal ground one, were premised on the scenario his Honour was wrong in his conclusion the facts did not give rise to a foreseeable risk of psychiatric injury and thus did not engage a duty of care to avoid it. His Honour was not wrong.
[101]
"In failing to consider the events complained of in paragraph 3 of the Statement of Claim as a whole when considering whether a duty arose, whether there was a breach of duty, and what the cause of the Plaintiff's injury was."
[102]
[129] Ground seven is without substance in its application to the presently relevant question of whether the relevant duty arose. As the above reasons and summary of his Honour's fact finding shows, before arriving at his conclusion the posited duty was not owed, his Honour had engaged in detailed fact finding regarding the incidents complained of. He also went on to analyse Ms Robertson's alternatively alleged points in time by which it was alleged a duty of care to avoid the risk of psychiatric injury to Ms Robertson arose. He did so referring to the accumulation of relevant facts, as distinct from every fact, which had occurred by those points. In that process he understandably did not repeat all factual detail of the incidents, correctly considering it adequate to identify them by reference to the dates of their occurrence.
[130] It was apparent his Honour was well aware Ms Robertson's case relied upon the cumulative significance of the incidents complained of and that he approached his task weighing the cumulative significance of the facts of those incidents as he found them to be. The difficulty for Ms Robertson's case was that the facts of the incidents as his Honour found them to be were not as egregious as urged by Ms Robertson and thus did not carry sufficient cumulative weight to prove the case advanced.
[131] The failure of the appellant to establish error in his Honour's conclusion the facts did not give rise to a duty of care to avoid risk of psychiatric injury to Ms Robertson, is determinative of this appeal. Nonetheless these reasons will address the remaining grounds in the context of the learned trial judge's conclusions as to breach and causation.
[103]
[132] The learned trial judge proceeded to consider, in the event he was wrong, and the defendants did have a duty to take reasonable care to avoid psychiatric injury to Ms Robertson, whether the defendants had breached that duty. He concluded there was no breach.
[133] Appeal ground two complains his Honour erred:
[104]
"In finding that the Defendants did not breach their duty to the Plaintiff".
[105]
[134] The premise upon which his Honour proceeded, namely that the defendants did have the posited duty, did not of course mean that there had been a breach. As much was explained in the following observations by Spigelman CJ in Nationwide News Pty Ltd v Naidu:[47]
[106]
"[I]t 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. ...
[107]
An employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. ...
[108]
One of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test of a risk that is not far fetched and fanciful, has been satisfied."
[109]
[135] In determining whether there has been a breach of duty it is necessary to assess the magnitude of the risk of injury and its degree of probability, for they bear upon what a reasonable employer would do by way of response to the risk.[48] That principle of negligence is also reflected in Workers' Compensation and Rehabilitation Act2003 (Qld) (Part 8 of which applies, pursuant to 305, in respect of any duty giving rise to a claim for damages, including in tort, under contract or under statute). It provides at s 305B:
[110]
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless -
[111]
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
[112]
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
[113]
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) -
[114]
(a) the probability that the injury would occur if care were not taken;
[115]
(c) the burden of taking precautions to avoid the risk of injury."
[116]
[136] Applying those principles to this case, it remained an obstacle for Ms Robertson's case that, on the facts as his Honour had found them to be, the degree of probability of psychiatric injury was not of such a degree that the precautions a reasonable person would have taken to avoid the risk of injury would likely have exceeded what was done by the defendants.
[137] It is also relevant in this context that the central recurring issue was competency of nursing in a workplace where the obvious paramount duty of the hospital and its medical staff was to protect and enhance patient health. In fulfilling this duty medical staff necessarily worked in combination and some such staff had supervisory obligations. Registered nurses and NUMs who perceived incompetence by an EEN could not be expected to turn a blind eye to it any more than the hospital could ignore reports to it of incompetence by an EEN. In responding to such reports, the precautions a reasonable person in the hospital's position would take to avoid psychiatric injury to the allegedly incompetent EEN would inevitably be consistent with and not detract from fulfilling the paramount duty of protecting and enhancing patient health.
[138] In light of that paramount duty, not raising credible allegations of incompetence with the EEN for fear of causing offence or stress to her was not a precaution a reasonable person would have taken. Nor would a reasonable person have misled the EEN by raising the allegations but pretending they were not of potential concern. To the contrary, a reasonable person would have arranged for some oversight in order to assess competence while also providing educative and operational support.
[139] That is what the trial judge found the defendants did.[49] His Honour rejected submissions the hospital had not investigated the nurses' complaints about Ms Robertson, alluding to the arrangements made for oversight and assessment, and noting there had been no submission as to what the defendant should have done to investigate the nurses' complaints that it did not do.[50]
[140] Of course, a reasonable person would have taken the precaution of being supportive of Ms Robertson in the process of addressing her competency. Again, his Honour found that is what occurred, observing:
[117]
"They gave her that support by implementing performance improvement plans, arranging for her to have further education and to work with other nurses as a supernumerary and reminding her of the hospital's counselling service. It is not clear what else they could have done."[51]
[118]
[141] His Honour observed that having been directed to the hospital's counselling service should she feel she needed any psychological support, Ms Robertson did not take up that suggestion because, unbeknown to the defendants, she was already seeing a psychologist outside the hospital system.[52]
[142] The notion that some more extreme precautions were warranted on the basis the stress of the process of addressing Ms Robertson's competency was compounded by the stress of workplace bullying or harassment was unsustainable in light of his Honour's findings regarding the incidents complained of. Moreover, as his Honour noted, Ms Robertson did not complain to anyone at the hospital that she was being bullied, badgered or mobbed.[53]
[143] Once limitations were placed on Ms Robertson's administration of medications, the nature of the workplace and the paramount duty to protect and enhance patient health meant the fact and nature of the limitations could not be kept secret from the registered nurses working with the EEN. The same point applies to having Ms Robertson work as a supernumerary. His Honour reasoned that far from requiring Ms Robertson to work as a supernumerary being a breach of duty, it was part of the support and education made available to her to improve her abilities and confidence.[54] He observed the education and support was intended to ensure she had or regained sufficient competence to continue to work as an EEN.[55]
[144] His Honour concluded:
[119]
"I am not persuaded that there was anything unsafe in the system of work, the conduct of the investigations and the provision of education and on-the-ward support that were undertaken. It was all undertaken in the interests of patient safety and Ms Robertson's ability to continue to practise as an EEN."[56]
[120]
[145] This conclusion was well open to his Honour and no error of reasoning has been exposed.
[146] It was argued on appeal that his Honour did not give consideration to whether the incidents complained of in paragraph three of the amended Statement of Claim "taken together could constitute a breach of duty", citing observations in Robinson v State of Queensland.[57] The presently relevant effect of those observations is that in personal injuries cases involving an accumulation of workplace incidents, the magnitude of the risk of injury and its degree of probability may logically be informed by the potential combined effect of the incidents. Whether they do will of course depend upon the substance of the incidents.
[147] Unlike the present case, Robinson was a case involving quite egregious serial conduct towards the plaintiff by a senior manager. The underlying problem for the appellant here is that the facts of the incidents as found by his Honour were not as egregious as had been alleged. Merely alleging a high number of workplace incidents will not take their apparent cumulative significance anywhere if, as here, the incidents turn out to be unremarkable workplace events from the perspective of an employer otherwise unaware of some special vulnerability of the worker concerned.
[148] His Honour not only quoted the observations in Robinson in discussing the relevant legal principles,[58] he engaged in very detailed fact finding about the incidents, occupying well over 40 pages of his reasons. It is inherently implausible that he then overlooked their potential cumulative significance, such as it was, in canvassing the nature of the various forms of breaches alleged and the facts relevant thereto. Indeed, the way his Honour alluded in summary to what was necessarily the combined effect of relevant facts is consistent with his awareness of the combined significance of the incidents. These conclusions also dispense with a similar issue raised in appeal ground seven, to the extent it relates to the issue of breach.
[149] The appellant's amended outline of argument in support of ground two also complained that his Honour erroneously failed to consider what Ms Robertson's counsel had submitted about the defendants' absence of investigation of reasons for perceived short term memory problems and notes about her psychiatric state. This was a reference to first instance submissions about breach of duty under the sub-heading "Failure to manage performance", which ended with the submission that the defendants "cannot have been appropriately managing Ms Robertson's performance if they did not investigate issues she was having with her performance". It is apparent from the above explained reasoning of his Honour that he concluded the hospital did appropriately investigate issues Ms Robertson was having with her performance.
[121]
[154] The learned trial judge proceeded to consider, in the event he was wrong, and the defendants did have a duty to take reasonable care to avoid psychiatric injury to Ms Robertson and did breach that duty, whether the breach caused the injury. He concluded it did not.
(1) A decision that a breach of duty caused particular injury comprises the following elements -
[123]
(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
[124]
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). ..."
[125]
[156] This provision adopts the "but for" test of causation. Proof that the breach of duty was a "necessary" condition of the occurrence of the injury thus required Ms Robertson to prove that but for the defendants' negligence her psychiatric injury would not have occurred.[63] Such proof necessarily relied upon the psychiatric evidence.
[157] It was not in contest that Ms Robertson had suffered a psychiatric injury. Realistically, there was no evidence suggesting a cause other than workplace stressors. The psychiatric evidence adduced emanated solely from Ms Robertson's two expert witnesses, psychiatrists Dr Sadasivan and Dr Larder.
[158] Dr Sadasivan's report of 12 August 2014 opined Ms Robertson suffered from major depressive disorder precipitated in the context of situational stressors related to her job. She opined Ms Robertson's depressive episode appeared to have been "triggered by alleged bullying, work related stress, and her difficulty in adjusting with changes in the work when she was moved to daytime shifts."[64] In connection with the latter point, Dr Sadasivan noted Ms Robertson had worked only nightshifts for over four years and in 2011 was shifted to doing day roster where she was required to give medications which had not been part of her regular duties previously. In hindsight, that point may explain the genesis of the competency issues which arose.
[159] Dr Sadasivan's report of 2014 contained no specific analysis of the particular significance of individual workplace incidents or of the conduct of the defendants that might potentially have been breaches causative of the psychiatric injury.
[160] A second report of Dr Sadasivan of 17 May 2019 added nothing material, save that in response to a question whether Ms Robertson suffered from a permanent psychiatric/psychological disability as a result of the bullying which she suffered in the workplace, the doctor answered:
[126]
"Yes, as a result of bullying Ms Robertson has suffered from permanent psychiatric disability."[65]
[127]
The expression of such a generalised opinion, particularly without foundational explanation, was unhelpful.
[128]
[161] Another source of evidence from Dr Sadasivan was a file note of her conference with Ms Robertson's legal representatives of 5 March 2020. That file note, to the extent it was relevant to causation, merely noted:
[129]
"Dr Sadasivan said that Ms Robertson had talked about the staff bullying her and that she felt she was being made a scapegoat when things went wrong. Dr Sadasivan had difficulty remembering the specific incidents that Ms Robertson had told her about in the earlier appointments. This was partly because the notes kept from that time had been lost."[66]
[130]
[162] In his first report of 17 August 2007 Dr Larder opined Ms Robertson suffered from a major depressive disorder resulting from "the incidents/bullying at work" and "the stressors" experienced as a result of them.[67] As to the specifics of any incidents reported to Dr Larder, the learned trial judge noted:
[131]
"In his first report, Dr Larder recorded that Ms Robertson had told him about the infusion pump incident on 11 August 2011, being accused of a medication error on 19 December 2011, a requirement (about a month later) to undertake a performance improvement plan (which appears, from Dr Larder's description of the timing, to refer to the 6 February 2012 meeting, about which Ms Robertson does not make any complaint, but it may be simply to the performance improvement plan processed from 19 December 2011) and being accused of incompetence, on 28 March 2012, concerning the code blue incident on 18 March. He also recorded that she referred to bullying generally, to a meeting in August 2011 in which she was told about the first AHPRA complaint, going to Robina and then her dealings with AHPRA."[68]
[132]
[163] Dr Larder's second report of 8 November 2019 opined Ms Robertson's presentation was consistent with a major depressive disorder, resulting initially from "the incidents/bullying at work" and the stressors experienced as a result of them, although he noted they had been "perpetuated and maintained" by subsequent processes, an apparent reference to AHPRA's processes.[69] The report noted Ms Robertson had told Dr Larder briefly of the alleged medication error and a complaint that she did not know how to take blood pressure. There was also reference to the infusion pump incident, although not to the alleged subsequent challenge by Ms Naylor.
[164] The third source of evidence from Dr Larder was a file note of his conference with legal representatives of 4 March 2020. It notes Dr Larder considered the incident involving a patient death on 1 April 2011 "could have been very stressful for Ms Robertson and caused her to feel isolated and alone".[70] He considered it likely the early work-related stressors from early April 2011 would have adversely affected Ms Robertson's ability to discharge her duties, although she may not have been aware of that.
[165] The learned judge noted, in effect, that the sparse collection of matters mentioned by both doctors as having caused Ms Robertson's injury were, in effect, either temporally irrelevant or not proved.[71] His Honour found:
[133]
"[392] I am satisfied, on the basis of each doctor's evidence, that Ms Robertson's illness was caused by stressors she experienced in her work at the hospital. Those stressors arose from the deterioration of her relationships with other nursing staff and the re-education process that she underwent, principally in 2012. However, I have found that none of the events that the doctors say contributed to her illness constituted bullying.
[134]
[393] Furthermore, neither doctor was asked whether, if the hospital had taken the particular steps that Ms Robertson alleges it ought to have taken in order not to breach its duty, or if it had not taken the steps that Ms Robertson alleges were in breach of its duty to her, her illness would not have occurred. In the absence of that evidence, it is not possible to conclude that, if the hospital had taken the steps that Ms Robertson alleges it should have taken, she would not have suffered the illness.
[135]
[394] In these circumstances, Ms Robertson has not satisfied me that her illness was caused by the hospital's alleged breaches of its alleged duty, rather than by the stresses she underwent at work that were not themselves breaches of duty."[72]
[136]
[166] His Honour went on to note that a number of the incidents mentioned by the doctors were not the subjects of complaint by Ms Robertson. His Honour also noted that Ms Robertson's difficulties in fulfilling AHPRA's requirements could not be taken into account as grounds for liability because of s 237Health Practitioner Regulation National Law(Queensland), which precludes a person making a good faith referral to AHPRA from liability.[73]
[167] His Honour's ensuing conclusion that the allegation of causation failed was inevitable having regard to the findings of fact. Of course, his Honour was, as this Court now is, two steps removed from the existence of positive findings on which a realistic consideration of causation could occur. The exercise upon which his Honour embarked was unavoidably general given the wide array of alleged but unproven breaches and the need for the injury to have been caused by proven breach in order to establish the element of causation.
[168] The appeal grounds of specific relevance to causation are that the learned trial judge erred:
[137]
consider whether the events, considered together, caused or significantly contributed to the Plaintiff's injury;
find that the events, considered together, complained of by the Plaintiff caused or significantly contributed to her injury;
[138]
in circumstances where his Honour found that:
the Plaintiff suffered a psychiatric injury at [367];
the events complained of by the Plaintiff in paragraph 3 of the Statement of Claim occurred.
[139]
In disregarding the events complained of by the Plaintiff in paragraph 3 of the Statement of Claim as causes of the Plaintiff's injury because His Honour did not consider each individual instance to be "bullying".
In finding that he was not satisfied that the hospital's alleged breaches of its alleged duty, rather than by the stresses she underwent at work that were not themselves breaches of duty ([394]) by reference to the stresses being the 'deterioration or her relationships with other nursing staff and the re-education process that she underwent' in circumstances where his Honour found that those events did not constitute 'bullying' ([392])...
In failing to consider, or properly consider, what the cause of the Plaintiff's injury was by reference to the facts found and the evidence before the Court."
[140]
[169] There is also the complaint, in appeal ground seven, of the failure to consider the whole of the events complained of in paragraph three of the Amended Statement of Claim as it relates to causation.
[170] The complaint in ground seven may be dispensed with immediately for two reasons. The first reason is that his Honour expressly considered the potential for cumulative effects in considering causation.[74] The second reason explains why grounds three and eight may also be dispensed with - they all wrongly assume his Honour was free to reach a conclusion regarding the causing of the injury without regard to the limitations in the psychiatric evidence as to what caused that injury. Of course, the arbiter of fact is not bound by expert opinion, but this was not an injury which spoke for itself as to what workplace events likely caused it. Indeed, the very existence of the injury was the province of expert psychiatric opinion. Consideration of causation of a psychiatric injury, diagnosable only by experts, necessarily required consideration of what the experts said caused the injury. That evidence, which would have been thin even taking Ms Robertson's case at its highest, is what his Honour considered. Having regard to what his Honour found about the events in the workplace, the psychiatric evidence did not allow it to be inferred it was likely a breach of the defendants' duty of care which was a material cause of Ms Robertson's injury. Grounds three, seven (as it applies to causation) and eight must therefore fail.
[171] Ground four perpetuates the erroneous argument that the rejection of the "badgered, bullied and mobbed" allegation meant his Honour disregarded the incidents complained of. He did not. He had regard to them based on the facts of the incidents as he found them to be. This ground also fails for the same reason that grounds three, seven and eight fail.
[172] Finally, ground five is merely a complaint about his Honour's eventual conclusion, quoted above. On the facts as found it was a conclusion well open to his Honour and no basis to infer error was developed in submissions.
[141]
[173] None of the grounds of appeal have succeeded. The appeal must fail. Costs should follow the event.
[16] Appellant's amended outline of argument [57].
[150]
[17] See for example, Practice Direction No 4 of 2020 Case Flow Management - Civil Jurisdiction.
[151]
[18]Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd(1990) 169 CLR 279, 287-288.
[152]
[19] See the discussion of the inherent powers and the UCPR by French J in Assistant Commissioner Condon v Pompano Pty Ltd[2013] HCA 7; (2013) 252 CLR 38, 59-61.
[153]
[20] Appellant's amended outline of argument [57]-[58].
[154]
[21] The transcript of day 1 was not included in the appeal books.
[155]
[22] Appellant's amended outline of argument [58].
[26] It appears this date was incorrectly selected because it had been thought the meeting of 28 March 2012 had occurred on 29 March 2012 but nothing turns on the disparity.
[158]
[30] As was conceded by the appellant's counsel at Appeal Transcript 1-4 L42.
of the Diocese of Brisbane v Greenway[2017] QCA 103, [38]-[41].
Parties
Applicant/Plaintiff:
# Robertson
Respondent/Defendant:
State of Queensland & Anor \[2021\] QCA 92
Cases Cited (8)
(2005) 222 CLR 44
(2007) 71 NSWLR 471
(2002) 211 CLR 317
(1980) 146 CLR 40
(1990) 169 CLR 279
(2013) 252 CLR 38
(2002) 60 NSWLR 371
(2012) 246 CLR 182
[25] An amended statement of claim was also filed. Allegations about vicarious liability were included as paragraph 6A.
[31] It follows this ground of appeal must fail.
[32] Consideration of the remaining complaints of error requires some overview of the facts of the case as the learned trial judge found them to be.
[115] In Koehler v Cerebos (Australia) Ltd,[36] the plurality observed an "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".[37] While normal psychological fortitude is not a pre-condition to liability for negligently inflicting psychiatric injury,[38] the assumption of normal fortitude will invariably inform the nature and extent of the steps an employer ordinarily takes in exercising reasonable care to avoid injuries to employees. The nature and extent of those steps may however broaden in respect of a particular employee where circumstances raise the foreseeability of psychiatric injury to that employee. The plurality in Koehler v Cerebos (Australia) Ltd thus observed:
[120] In the learned trial judge's reasons, having found he was not satisfied Ms Robertson had been bullied, badgered or mobbed, he went on to consider whether the circumstances alleged gave rise to a duty of care.[40] His Honour approached that task by reference to the three alternative occasions on which Ms Robertson alleged in the particulars to paragraph 2(e) of the amended statement of claim that a duty of care to avoid the risk of psychiatric injury to Ms Robertson arose. It was not disputed in this appeal that they were the three alternative occasions when the duty of care to avoid risk of psychiatric injury allegedly arose.[41] These reasons have already canvassed his Honour's rejection of the foundation for a foreseeable risk of psychiatric injury arising by those alternative occasions. His Honour then observed, fatally to Ms Robertson's case:
[127] For all of these reasons there is no substance to ground one.
[128] Appeal ground seven complains the learned trial judge erred:
[150] Merely demonstrating an argument by a losing party was not addressed in the reasons for judgment will not ground error, it being the relative significance of the argument to the resolution of the determinative issues in the case which matters.[61] It is not apparent from the first instance submissions referred to by the appeal outline or submissions developed at the appeal hearing how the matters raised demonstrate error in the learned trial judge's conclusion.
[151] No argument was developed as to why seeming forgetfulness in connection with appropriate medications should have been recognised as warranting action other than supervision and further education on the topic, or for that matter why supervision was not an appropriate form of investigation of the issue.
[152] As for the reference to notes about Ms Robertson's psychiatric state it transpires that was merely a reference to annotations progressively made in an appendix to Ms Robertson's performance improvement plan, apparently sourced from other nursing staff supervising or observing her work.[62] Among many entries there were two notes referring to Ms Robertson appearing anxious in performing some tasks on 8 and 10 May 2012 and one note on 19 April 2012 noting the employee she worked with was concerned Ms Robertson may have depression. The speculation of an employee working with her that she may have depression could perhaps have assumed greater significance had there been a repetition of such entries or if it had been pleaded her employer knew or should have known she had a psychiatric illness. But that was not the appellant's case. Considered collectively the annotations in the performance plan notes were consistent with the stressful but hardly extraordinary circumstance of an employee being required to work under supervision in a performance improvement process. They were not suggestive of such a raised probability of psychiatric injury that a reasonable person would have taken steps additional to those taken by the defendants in managing her supervision and support - steps his Honour found were reasonable in reaching his conclusion there was no breach.