Nurse Fails in Appeal Against Finding that She Was Not Bullied at Work


Robertson v State of Queensland [2021] QCA 92

Introduction

This decision involved consideration of whether a hospital owed a duty of care to an employee endorsed enrolled nurse, who alleged that she suffered psychiatric injuries as a result of her employer’s negligence. This case was heard in the Queensland Supreme Court (Court of Appeal) (the Court). At trial, the District Court found that no duty of care was owed by the State of Queensland and Gold Coast Hospital and Health Service (the Respondents) to the enrolled nurse (the Appellant). On appeal, the Court held that the Respondents did not owe the Appellant a duty of care and that even if such a duty had been owed, the Appellant would not have succeeded for failure to establish breach of duty and causation.

Facts

The Appellant worked at the Gold Coast Hospital as an endorsed enrolled nurse (EEN). The Appellant alleged that she suffered a chronic adjustment disorder with mixed anxiety and depressed mood because of events in the workplace. The Appellant alleges that she was badgered, bullied and mobbed by some of her colleagues and that this resulted in her sustaining psychiatric injury. The conduct alleged to have resulted in the Appellant’s injury was summarised in the Appellant’s amended statement of claim:

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…

Following multiple assessments of the Appellant’s performance (including two independent assessments), the Appellant was referred to the Australian Health Practitioner Regulation Agency (AHPRA). As a result of this referral, AHPRA accepted undertakings from the Appellant that she would undertake further education, only work under supervision, and would provide reports to her supervisor. The Appellant began the additional education; however, testified that she did not complete it as a result of her psychiatric condition.

At AHPRA’s request, the Appellant underwent psychological assessment to identify whether she had a cognitive or psychological impairment which could detrimentally affect her ability to practise. The psychologist considered there were no indications of a cognitive or psychological impairment which could impact upon her ability to practise.

Decision

Bullying, badgering and mobbing

The Appellant contended that the trial judge was in error in finding that the Appellant was not bullied, badgered or mobbed as alleged (although the trial judge considered the appellant may have been bullied on two occasions). However, on appeal, the Appellant did not argue that an error in fact-finding had been made. The Court noted that the language of the trial judge’s finding created a false issue; it was unnecessary for the trial judge to express a view on whether each incident raised by the Appellant amounted to bullying, badgering, or mobbing. It was the fact finding undertaken by the trial judge to determine whether a duty of care was owed, rather than the description of the character of each incident, that was important.

Duty of care

Employers have a duty to take reasonable care to avoid injury to employees. This duty includes an obligation that the employer take reasonable steps to provide a safe system of work. With regard to psychiatric injury, a duty of care will be owed where psychiatric injury to a particular employee is reasonably foreseeable (Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44). Whether a duty of care is owed requires consideration of the nature and extent of work being undertaken by the employee and any signs given by the employee.

The Court’s findings included:

  • The nature and extent of work being undertaken by the Appellant was not unusual; she was not required to work unusually onerous hours or perform unusually onerous tasks. Further, the Appellant was not subject to a pattern of bullying or harassment by her colleagues. The Respondent was aware of concerns regarding the Appellant’s competence and that steps were being taken to address those concerns.
  • The Appellant did not show any signs of material distress or impact so as to make a psychiatric injury reasonably foreseeable. While it is likely that where an employee’s competency is raised as a concern, the employee may be stressed and upset, the Appellant did not exhibit such a degree of stress and upset as to suggest that psychiatric injury was reasonably foreseeable. The way in which the Appellant’s competence was raised was ordinary and thus was not so extreme or unusual as to indicate that psychiatric injury to the plaintiff was reasonably foreseeable.

The trial judge found that the facts did not give rise to a duty of care to avoid risk of psychiatric injury to the Appellant.  The Court did not identify any error with this finding.

Breach of duty

The Appellant argued that the trial judge was in error in finding that, even if there was a duty of care to avoid risk of psychiatric injury owed to the Appellant, the Respondent had not breached this duty.

To determine whether there has been a breach of a duty of care it is necessary to consider the magnitude of the risk of injury and the probability of the risk materialising.

The Court acknowledged that the paramount duty of the hospital was to protect and enhance patient health. In this context, the hospital and its staff could not be expected to ignore any perceived incompetence of an EEN. A reasonable person would not avoid raising perceptions of incompetence for fear that it may lead to offence or stress. A reasonable person would have arranged for an assessment of competence and educational and operational support. A reasonable person would also offer support to the person subject to assessment. The trial judge considered that the hospital had behaved consistently with what a reasonable person would have done. The Court did not identify any error in the trial judge’s reasoning.

Causation

The trial judge also considered, in the event that a duty of care was owed and breached, whether the Appellant’s injury was caused by the breach of the duty of care. Causation will be made out if the Appellant can demonstrate that “but for” the negligence of the Respondent, the Appellant would not have incurred the psychiatric injury.

The Court accepted the trial judge’s conclusion that the Appellant had failed to establish causation. The trial judge considered that the psychiatric opinion evidence adduced by the Appellant was temporally irrelevant or insufficient to prove causation. The Court found that the psychiatric evidence adduced by the Appellant did not allow for an inference that a breach of the Respondent’s duty of care was a material cause of the Appellant’s psychiatric injury.

Compliance Impact

The paramount duty of care owed by a health service is to promote and protect the health of its patients. Where concerns exist as to the competency of a staff member involved in patient care, it is reasonable to assess the performance of the staff member and concerns about competency should not be ignored. Where concerns about competency are raised in an ordinary way, it is not generally foreseeable that an employee will suffer a psychiatric injury. Nonetheless, it is necessary to provide adequate support to staff during these processes.