AHG v Snowy River Shire Council

[2012] NSWADT 152

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AHG v Snowy River Shire Council [2012] NSWADT 152
Hearing dates:	13 July 2012
Decision date:	03 August 2012
Jurisdiction:	General Division
Before:	N Isenberg, Judicial member
Decision:	The Tribunal decides that it should take no further action on the matter.
Catchwords:	Damages - causal link - applicant's failure to discharge onus
Legislation Cited:	Health Records and Information Privacy Act 2002
Cases Cited:	GR v Department of Housing [2004] NSWADTAP 25 HP v Hunter New England Area Health Services [2009] NSWADT 186 JD v NSW Medical Board (No.2) [2006] NSWADT 345 NW v NSW Fire Brigade (No. 2) [2006] NSWADT 61 NZ v Director General Department of Housing [2006] NSWADT 173 Re Rummery and Federal Privacy Commissioner & Anor [2004] AATA 1221
Category:	Principal judgment
Parties:	AHG (Applicant) Snowy River Shire Council (Respondent)
Representation:	AHG (Applicant in person) Williams Love and Nicol Lawyers (Respondent)
File Number(s):	113315

REASONS FOR DECISION

Background

1. For reasons that are not altogether clear, the applicant, who was an employee of the respondent, rendezvoused with Ms Minton, the Council's then Occupational Health and Safety Officer, at the surgery of Dr Veleba on 28 February 2011. During the consultation, at which Ms Milton took notes, the applicant made very serious allegations concerning the tragic death of another employee, Ms S's; alleging that Ms S had committed suicide as the result of bullying at work.

1. The serious nature of the allegations led to Ms Minton sending an email on 1 March 2011 to 6 senior Council managers who the respondent said were members of the Council's Risk Management Committee. The email attached her notes of the consultation.

1. Following the applicant's contentions in relation to Ms S's alleged suicide, the Council engaged a consultant to carry out an investigation into the allegations. The report of that investigation (the Report) referred extensively to the police investigation and the coroner's report in relation to the cause of death. The Report concluded, amongst other things, that as a result of some incidents Ms S was probably suffering stress. In the absence of evidence from Ms S herself, no conclusion was able to be reached in relation to bullying or harassment. The Report did however reach conclusions in relation to the applicant's conduct finding that she:

intentionally fabricated evidence in respect of the circumstances surrounding Ms S's death;

intentionally attempted to mislead the investigation; and

intentionally made false allegations concerning the conduct of the Council's Human Relations Manager.

1. The Report recommended that the Council terminate the applicant's employment on the grounds of serious misconduct in connection with the allegations.

1. On 6 July 2011 the Council provided the applicant with a copy of the Report and required her to provide her written response to the report by 15 July 2011, noting that her continued employment was at risk. On 14 July 2011 the applicant provided a brief email response to the Report but on 20 July 2011, and having considered the applicant's response, the Council terminated her employment.

Background to the application

1. On 14 November 2011 the applicant, filed an application for review of the respondent's conduct under the Health Records and Information Privacy Act 2002 (HRIP Act). The applicant complained that the respondent breached her "Medical/Health Privacy" by its Occupational Health and Safety Officer sending "notes and email to numerous staff relating to a doctor's appointment and privacy breaches".

1. Ms Minton's email itself technically contains some minor health information about the applicant, for example, that she had attended a GP on the stated date. It is not the content of the email itself which is of concern to the applicant, but rather, Ms Minton's attached notes which contained health information about her. (It is possible the notes were later transcribed into the form in which they were attached to the email but nothing turns on that.) The Council accepted that this information should not have been disclosed to the recipients of the email.

1. By way of remedy the applicant sought orders that:

A The public sector "refrain from conduct or actions breaching IPP and

PCP";

B Performance of an information and privacy review -policies;

C The personal information that has been disclosed to be corrected; and

D The public sector to take steps to remedy my loss and damages.

1. In relation to the last order, the applicant alleged that she has suffered financial loss and psychological harm and sought compensation in the sum of $40,000.

1. She later expanded the orders sought to include an order that the staff involved in the breach be reprimanded.

1. On 27 January 2012 the Council's General Manager wrote to the applicant indicating that he had concluded that the disclosure of her health information to the recipients of Ms Minton's email of 1 March 2011 constituted the disclosure and/or use of her health information for a purpose other than the primary purpose for which it was obtained in breach of Health Privacy Principles (HPP) 10 and/or 11. The letter went on to record findings of breaches of HPP 12 (the identification of the applicant by name in the email and notes) and HPP 4 (failing to inform the applicant that she could access the information). The General Manager formally apologized to the applicant for the unauthorised disclosure of her health information.

1. The Council also indicated that it was prepared to consider the making of a payment of compensation for any financial loss or psychological harm the applicant could demonstrate had been caused by the disclosure. Nothing of substance was forthcoming such as to provide the respondent with sufficient information for it to consider compensation.

1. The Tribunal asked the applicant at several planning meetings to particularise her claim. In a letter to the Tribunal dated 18 January 2012 the applicant elaborated on her claim for financial loss, stating only that, as a result of the privacy breach, she is longer employed at Council; she earns substantially less and no longer has a work vehicle. She again wrote to the Tribunal on 1 March 2012 stating that she had previously earned $1936.20 per fortnight whereas now she earns $1269.20. She claimed a loss of $667 per fortnight. She claimed 25 years of loss of income which she calculated as $1,258,530. She also wrote that she formerly had a car provided by the respondent but has had to buy a car and now has to pay for her own petrol. She claimed a loss of $16,200 per annum 'so far'.

Applicant's evidence

1. The applicant explained that she found out about the disclosure of her personal information when, on 7 March 2011, she received an anonymous letter in the post which referred to aspects of her health which she believed could only have come from Ms Minton as a result of her presence at the consultation. She took the letter to the police. The following day she asked Ms Minton about it and was assured that her notes of the consultation were locked away. Ms Minton told her that she thought it was possible that someone from payroll might also have a copy in connection with the applicant's sick leave claim. The applicant said she complained again to the Council and received a written assurance that her personal information had been 'handled in accordance with the Council's policies and procedures'. Subsequently, when she subpoenaed documents in relation to an unrelated IRC claim, the email and attachment came to light. It was only then 'after they were caught out' that she received a formal apology. She believed there had been a cover-up.

Claim for psychological harm

1. The applicant said she first went to Dr Veleba in January 2011 in relation to an unrelated stress claim and at that time she was diagnosed with an adjustment disorder. She said she had seen him once or twice before the consultation of 28 February 2011 because she needed a referral for an operation and for something like sinus. In cross-examination she said she might have seen him afterwards for the referral she had mentioned. His office was next door to the Council so he was convenient.

1. As to whether she had attended on Dr Veleba or any other doctor after receiving the letter or seeing the email and attachment in the subpoenaed documents, she said she is not one to frequent doctors. She may have had to go back to Dr Veleba in March 2011 but she did not know if she did, although she thought she may have gone back a 'couple of times'.

1. She was asked how her elevated stress had manifested itself. She said 'it is still stressful. There is anxiety and it's different'. She is frustrated because of the cover up. She agreed that she was also anxious and frustrated beforehand. She could not separate the effects other than to say it was 'different'.

1. She said she had definitely become worse, and Dr Veleba recommended sleeping pills which she would not take. She described her coping mechanisms: she runs and walks, as she has done all her life; she takes olive leaf oil; and sleeps with lavender (which she grows) under her bed. Since this incident she has taken up yoga which she does 3 times a week using a DVD she was given, and has started using weights. She said that just because she does not take medication does not mean she has not been affected.

1. She said she was being punished for not getting a doctor's report. She said she had approached Dr Veleba and he had given her a one page printout of his notes which she supplied to the Tribunal. The notes appear to relate only to the consultation of 28 February 2011 although they refer to discussion about 2 previous conditions. At the consultation, according to the doctor's notes, she was offered sleeping tablets (which she declined) and was for review in 1-2 weeks, or earlier if concerned. There were no notes of any earlier or later consultations.

1. The Tribunal asked the applicant why she had not supplied any medical evidence, when she was claiming significant stress because of the disclosure of her medical information. The applicant said Dr Veleba had declined to provide a report because there may be a conflict with the Council, who is his landlord for 'peppercorn rent'. In cross-examination she said that the doctor knew what was required but was in a 'difficult position'.

1. In cross-examination she was referred to her Workcover claim form completed on 28 February 2011. There she referred to 'stress leave due to incident of confidentiality on 8/11/2010 and 28/12/2010. Overwhelming stress due to work friend dying at work 11/2/1011 and what she told me she was going to do due to bullying in the workplace'. It was pointed out that the Workcover certificate completed by Dr Veleba on 28 February 2011 - that is, before she became aware of the breach - gave her sick leave from 19 January 2011 to 28 March 2011.

1. She was reminded that in the course of the year she was called to participate in an investigation which she agreed was stressful. She agreed that being investigated was stressful but said that was because she knew the Report would not be truthful. She also agreed the findings of misconduct were stressful and that the ensuing notice to show cause was stressful. She said that her entire association with the Council was stressful.

1. She agreed that her stress pre-dated learning of the email but the 'lies and mistruths' have exacerbated her condition. She denied that being terminated on 20 July 2011 was more stressful than learning of the email because she said, she could 'see the writing on the wall' and knew, once the investigation was being undertaken, that she would be sacked.

1. In cross-examination it was put to the applicant that the allegations she made at Dr Veleba's about bullying and harassment allegedly leading to Ms S's suicide did not relate to her. She said the context of that discussion was in her medical consultation. She did not answer what she thought Ms Minton should have done about those serious allegations, saying instead that she had told the doctor she would be persecuted. This did not appear in the notes. She said she told the doctor she would not being doing anything about those allegations except mentioning them in respect of her own Workcover claim

Claim for economic loss

1. The applicant said that it was as a result of the email that the investigation took place. The ensuing report was critical of her and she lost her job.

1. She referred to the information she had provided the Tribunal and said that she now works part time 1-3 days a week, starting in September 2011, and she is paid $34 per hour. She is the carer for her uncle and receives $120 per fortnight and a carer's card. She said she has had to buy a car and pay for her own petrol as well.

CONSIDERATION

1. The first matter for the Tribunal is to be satisfied as to the causal link between the breach of the IPP and the claimed damage and it is the applicant who bears the onus of establishing that link: GR v Department of Housing [2004] NSWADTAP 25 at [38].

1. I was referred to the Tribunal's decision in MH v NSW Maritime [2011] NSWADT 248 where JM Molony said at [210]:

The applicant bears the burden of establishing the causal link between a breach of an IPP and damage suffered: GR v Director-General, Department of Housing [2004] NSWADTAP 25 at [38], In considering that causal link the President said President in NW v NSW Fire Brigades (No. 2) [2006] NSWADT 61 at [21]- [24]:

"21 The 'but for' test to which the applicant has referred, as the way of judging whether a causal link is established was mentioned in FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 (16 April 2003) (set aside in part by the Appeal Panel, and wholly by the Court of Appeal in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192; but not affected in relation to this point). The Tribunal said:

'103 The requirement that any loss or damage be "because of the conduct reflects the common law requirement that the damage must be caused by the conduct in question. The "but for" test is generally applied to torts and is relevant to these proceedings. Pursuant to the "but for" test, the conduct caused the damage if that damage would not have occurred without (but for) it. (March v Stramare [1991] HCA 12; (1991) 171 CLR 506.) In other words, did the conduct in question make any difference to the outcome?'

22 Some care should be taken, as I see it, in drawing strict analogies with the common law principles as they have developed in the law of torts and the law of contract.

23 In my view the award of statutory damages in Privacy Act matters remains a discretionary one even where a causal link sufficient to satisfy a 55(4). That the position under this statute is less automatic is reflected, I consider, in the language of the opening words of s 55(2):

'On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders' (Emphasis added).

24 These words do not preclude the possibility that the Tribunal might find a contravention, might find a causal link between the contravention and harm suffered and make no order. The matter of what to do after reviewing the conduct is left entirely to the Tribunal. Then if it is minded to make an order involving payment of damages the rule in s 55(4)(b) comes into play. It does not follow that if a causal link to satisfy s 55(4)(b) is found that the Tribunal must award damages. It still remains a discretionary matter. As I see it, there is no 'right' to compensation in the way that might be the case under common law principles in tort and contract."

1. Succinctly, in HP v Hunter New England Area Health Services [2009] NSWADT 186 at [43] the Appeal Panel said:

... compensation for alleged financial loss and alleged psychological and physical harm can only be considered where the Tribunal finds that the alleged loss and harm was 'because of or 'caused by' the contravening conduct of the Respondent ...

1. In HP v Hunter New England Area Health Services the Appeal Panel, referred to a number of cases such as JD v NSW Medical Board (No.2) [2006] NSWADT 345; NW v NSW Fire Brigade (No. 2) [2006] NSWADT 61, NZ v Director General Department of Housing [2006] NSWADT 173. Cited with approval in some of those decisions was the decision of the Administrative Appeals Tribunal in Re Rummery and Federal Privacy Commissioner & Anor [2004] AATA 1221. In HP v Hunter New England Area Health Services at [42] the Appeal Panel set out the principles that apply to the award of compensation in privacy cases:

...

(a) that damages are compensatory in that the applicant should be awarded such sums of money so as that he/she may be restored to the position that he/she would have been in but for the breach: see GR (supra) at [26] and Rummery (supra) at [32]. However, this must also be viewed in the context of the $40,000 limit as provided for in the PPIP Act;

(b) in measuring compensation the principles of damages as apply in tort law are a guidance but the ultimate guide is the wording of the PPIP Act and its objectives: see NW (supra) at [22];

(c) compensation should be assessed having regard to the complainant's reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances: see Rummery (supra) at [46] as adopted in NZ (supra) at [35];

(d) 'psychological harm' in s.55(4) of the PPIP Act is intended to encompass situations where an individual suffered some impairment of the mental states and processes. These being conditions such as depression and anxiety: see JD v NSW Medical Board (No. 2) at [53]; and

(e) even where an applicant is able to substantiate loss or damage as a result of conduct that contravenes an 'information principle' under the PPIP Act, an award of damages under that Act remains a discretionary one: see NW (supra) at [23] and [24] and cf. Re Rummery (supra) at [32].

1. It is then in this context that I have considered the applicant's claim for psychological harm and economic loss.

Psychological harm

1. In her letter to Tribunal dated 18 January 2012 the applicant claimed that she feels "frustrated, anxious, depressed and overwhelmed" at the thought of her medical records having been sent around to other staff and she gave evidence to that effect. The applicant gave evidence of having used a number of alternative remedies for her increased stress. From her evidence she had modified her usual healthy activities to now include yoga and weights.

1. The applicant conceded that she had had a very stressful year: a work friend had died; she had been called to participate in an investigation; she had been asked to show cause; and she had been terminated. She contended that the stress of learning of the publication of her medical information was 'different' to the stress occasioned by those other work-associated stressors but, in my view, was wholly unable to articulate how it was different.

1. The only medical evidence the applicant provided to support her claim was a copy of Progress Notes from Dr Veleba dated 28 February 2011. I found the applicant's evidence to be confused as to whether she had had previous consultations with Dr Vereba, for other matters, or whether those consultations had occurred afterwards. In those circumstances it was unclear if there were further doctor's notes at all. She gave an explanation as to why she had not provided further notes or a report from Dr Veleba, but I did not find her explanation persuasive in light of her confused evidence about other consultations.

1. Both the applicant's own evidence and the doctor's notes of 28 February 2011 clearly establish that the applicant's stress condition predated the incident the subject of these proceedings. It was unclear to me if the applicant had in fact returned to Dr Vereba in relation to stress occasioned by the publication of her medical information.

1. In GR v Director-General, Department of Housing 2004 NSWADTAP 26 at [42] the Appeal Panel said:

42 Clearly a significant onus lies on the applicant at this point to satisfy the Tribunal that the causal connection required by s 55(4)(b) is made out. Equally the agency should have an opportunity to test any expert evidence that the applicant seeks to rely on, including by having the applicant examined by its expert.

1. In my view the applicant has not discharged that 'significant onus'. Neither has the respondent had the opportunity to test the applicant's assertions, vague though they be.

1. I am therefore not satisfied that the applicant has demonstrated that she has suffered psychological loss because of the actions of the respondent in relation to her medical information.

Financial loss

1. In her letter to the Tribunal dated 1 March 2012 the applicant alleged that she had been dismissed from her position at Council "due to the medical privacy breach" and that this caused her financial loss.

1. The applicant elaborated on this contention in her evidence to the effect that had there not been the privacy breach in relation to her medical information, there would have been no investigation, and she would not have been accused of misconduct and would not have lost her job.

1. In my view there is a serious flaw in the applicant's logic. Any financial loss the applicant has suffered as the result of the termination of her employment was not due to the disclosure of her health information by Ms Minton, but was because of the findings of the Report that the applicant had intentionally fabricated evidence and had intentionally misled the investigation into her allegations concerning the death of Ms S. In inviting the applicant to show cause why she should not be terminated, the Council, after referring to the very serious findings against her, observed that it no longer had trust and confidence in her. She failed to adequately respond to allegations made against her in the Report which were set out in the notice to show cause. The termination of the applicant's employment was not 'because of or 'caused by' the disclosure of any of her health information: per HP v Hunter New England Area Health Services.

1. It was clear to me that Ms Minton's purpose in sending the email was to alert senior Council officers to the allegations concerning Ms S's death. The disclosure of the applicant's health information in the attached notes was incidental to the serious allegations being made which, quite properly in my view, required investigation. I reject the applicant's contention that because the allegations were raised in the context of her own stress claim, no action should have been taken by Ms Minton, the respondent's OH&S officer.

1. I am therefore not satisfied that the applicant has demonstrated the necessary nexus between her claimed economic loss and the actions of the respondent in relation to her medical information.

Conclusion

1. The Council accepted that the disclosure of the applicant's health information constituted a breach of the HRIP Act. I am not satisfied however that the applicant has suffered any psychological harm or economic loss because of that disclosure. The Council has, through its General Manager, formally apologised to the applicant for the breach. Ms Minton, the Council officer responsible for the breach, is no longer employed by the Council and no action can be taken against her for the breach.

DECISION

1. The Tribunal decides that it should take no further action on the matter.

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Decision last updated: 03 August 2012