Hayes & Ors v State of Queensland

This appeal, which involved four claims heard together at trial and on appeal, concerned the fundamental issues of negligence (concerning duty, breach and causation) in the context of an investigation into alleged conduct by the plaintiffs, who were the subject of many complaints by other workers and which resulted in a union picket at the workplace.  The plaintiffs were supervising officers and the complaints were made by persons whom they supervised. 

The appellants, employees at the Maryborough office of Disability Services Queensland, sought damages in connection with complaints made against them by residential care officers.  The essence of the plaintiffs’ claims was that Disability Services Queensland failed to properly support them in the workplace after the complaints were made and this resulted in each suffering psychiatric injury. Each individual case depended on proving that (1) a duty of care was owed to her by the respondent employer to take reasonable steps to prevent psychiatric injury to her, (2) the duty was breached, and (3) that breach caused the appellant to suffer psychiatric injury. [98].

At trial, relying upon State of New South Wales v Paige (2002) 60 NSWLR 371, O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 and New South Wales v Rogerson [2007] NSWCA 346, the primary judge found that no duty of care was owed to the appellants as the alleged duty to provide support arose “directly from the fact of the allegations, the investigation, or the removal from the position”: see Palmer v State of Queensland [2015] QDC 63 [85]–[94], [123] and [124].  His Honour reasoned that had the respondent owed the appellants such a duty, it would have been breached and the breach would have caused each appellant’s psychiatric injury.  Albeit finding for the respondent, his Honour undertook “a precautionary assessment” of damages in each case. [3].

The Court (consisting of the President, Mullins and Dalton JJ) considered that the learned trial judge erred in concluding that the decisions in New South Wales v Paige (2002) 60 NSWLR 371, O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 and New South Wales v Rogerson [2007] NSWCA 346 precluded finding that a duty of care arose in the circumstances on the part of the respondent to provide adequate support to each appellant in the workplace while the investigation of the complaints was otherwise ongoing, so as to avoid psychiatric injury to the relevant appellant.  [100].

The President, in a dissenting judgment, allowed each appeal.  [96]. Her Honour considered the respondent breached its duty of care to the appellants [18], [63], [80], [47] and that such breach caused psychiatric injury to the appellants.  [35], [36], [74], [82], [90], [57].  Her Honour found in favour of the appellants and entered judgment accordingly.  [96].   

Mullins J agreed with the detailed reasons of Dalton J who considered that:

1. the respondent’s duty of care extended to Ms Hayes, Ms Palmer and Ms Harris (but not to Ms Greenhalgh who did not prove that a duty of care to avoid a foreseeable risk of psychiatric injury was owed to her by the respondent in the circumstances).  [173], [230], [263], [301].
2. Ms Hayes, Ms Palmer and Ms Harris demonstrated the employer breached the relevant duty of care.  [177], [233], [267].
3. Ms Hayes, Ms Palmer and Ms Harris did not, through the sole expert evidence of Psychiatrist Dr Andrew Byth, prove that the breach of duty caused the psychiatric injury ultimately suffered by them.  [196], [243], [277].

Their Honours dismissed the appeal.  [307]. 

Whilst Dalton J considered, in the case of Ms Greenhalgh that because no duty arose, it was unnecessary to consider matters of breach and causation, Mullins J concluded that if a duty was established, that although Ms Greenhalgh would have been able to demonstrate breach (in failing to provide adequate support to her in the workplace, particularly in not warning her of the proposed picketing of the Maryborough office on 19 January 2009 or making arrangements for her to stay away from the Maryborough office whilst picketing was underway, and by directing her in April 2009 not to have contact with any of her former co-workers), like the other appellants, causation was not proven at trial. [103].