Hayes v State of Queensland - [2016] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

SAMANTHA KATHERINE HAYES
(first appellant)
PAMELA GREENHALGH
(second appellant)
TANYA PALMER
(third appellant)
EDITH MATILDA HARRIS
(fourth appellant)
v
STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 4063 of 2015
Appeal No 4064 of 2015
Appeal No 4065 of 2015
Appeal No 4066 of 2015
DC No 3251 of 2012
DC No 3317 of 2012
DC No 3224 of 2012
DC No 3226 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

District Court at Brisbane – [2015] QDC 63

DELIVERED ON:

29 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2015

JUDGES:

Margaret McMurdo P and Mullins and Dalton JJ
Separate reasons for judgment of each member of the Court, Mullins and Dalton JJ concurring as to the orders made, Margaret McMurdo P dissenting

ORDER:

In Appeals No 4063, 4064, 4065 and 4066 of 2015:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the appellants each worked as managers in a government department – where a large number of workers, together with their union, made complaints against the appellants – where the complaints were investigated by the department and later rejected – where the appellants allege there was a lack of support in the workplace after the complaints were made – where the appellants each suffered psychiatric injury – where the trial judge concluded that no duty of care was owed to the appellants because the basis for their complaints was an investigation by their employer – whether the trial judge erred in concluding that no duty of care arose in the circumstances

TORTS – NEGLIGENCE – BREACH OF DUTY OF CARE – where the appellants each worked as managers in a government department – where a large number of workers, together with their union, made complaints against the appellants – where the complaints were investigated by the department and later rejected – where the appellants allege there was a lack of support in the workplace after the complaints were made – where the appellants each suffered psychiatric injury – whether the respondent breached its duty of care in respect of each appellant

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – where the appellants each suffered psychiatric injury – where the facts assumed as the basis for the psychiatrist’s expert evidence were substantially different from the facts proved at trial – whether the breach of duty caused the psychiatric injury suffered by each appellant

Public Sector Ethics Act 1994 (Qld)

Barber v Somerset County Council [2004] 1 WLR 1089; [2004] UKHL 13, considered
Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244, cited
Gogay v Hertfordshire County Council [2000] Fam Law 883; [2000] EWCA Civ 228, considered
Goldman Sachs JBWere Services Pty Ltd v Nikolich(2007) 163 FCR 62; [2007] FCAFC 120, applied
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206, cited
Johnson v Unisys Ltd [2003] 1 AC 518; [2001] UKHL 13, cited
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, considered
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited
O’Brien v TF Woollam & Son Pty Ltd [2002] 1 Qd R 622; [2001] QSC 217, cited
O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7, cited
State of New South Wales v Mannall [2005] NSWCA 367, considered
State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235, distinguished
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, considered
Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607; [2000] UKHL 50, considered

COUNSEL:

W Sofronoff QC, with S D Anderson, for the appellants
D A Savage QC, with R Morton and N Jarro, for the respondent

SOLICITORS:

Shine Lawyers for the appellants
GR Cooper, Crown Solicitor for the respondent

MARGARET McMURDO P: These four matters were heard together both at first instance and on appeal. The appellants, Samantha Hayes, Pamela Greenhalgh, Tanya Palmer and Edith Harris, worked in the respondent’s Maryborough office of Disability Services Queensland. Their varied roles involved the management of residential care officers who provided essential 24 hour services to vulnerable people with significant intellectual disabilities living in the community. The nature of their work therefore involved a high degree of responsibility and could be expected to be stressful from time to time. In July 2008 Ms Julie Johnson, a team leader of residential care officers in the Maryborough office, made complaints against Ms Hayes alleging workplace harassment and other matters. The respondent, as it was legally obliged, investigated these complaints and in September 2008 found them to be unsubstantiated. By January 2009 the Maryborough office had become a troubled workplace, following further more serious and more extensive complaints from about 20 residential care officers and Ms Johnson against nine managers, including the appellants. The respondent, as it was legally obliged, also investigated these complaints. In November 2009, the further complaints were also found to be unsubstantiated.
Following the complaints, the appellants each suffered from a serious psychiatric injury and brought an action for damages in negligence and breach of contract against the respondent, alleging that it owed each of them a duty of care to sufficiently support her at the time of the complaints and during the resulting investigation. Each alleged the respondent breached that duty and caused her psychiatric injury. My initial observations apply to all four appeals although I later deal with each appeal separately.
The primary judge, relying on the New South Wales Court of Appeal cases of State of New South Wales v Paige,[1] O’Leary v Oolong Aboriginal Corporation Inc[2] and New South Wales v Rogerson,[3] concluded that the respondent owed no duty of care 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.”[4] Had the respondent owed the appellants such a duty, his Honour found it would have been breached[5] and the breach would have caused each appellant’s psychiatric injury.[6] Although giving judgment for the respondent, his Honour undertook what he termed “a precautionary assessment” of damages in each case.[7]
[1](2002) 60 NSWLR 371.
[2][2004] NSWCA 7.
[3][2007] NSWCA 346.
[4]Palmer & Ors v State of Queensland [2015] QDC 63 [85] – [94], [123] and [124].
[5]Above [125] – [127] (Ms Palmer), [157] (Ms Harris), [180] (Ms Hayes), [205] (Ms Greenhalgh).
[6]Above [111] – [113] (Ms Palmer), [157] (Ms Harris), [180] (Ms Hayes), [205] (Ms Greenhalgh).
[7]Above [236] (Ms Palmer), [253] (Ms Harris), [263] (Ms Hayes), [279] (Ms Greenhalgh).
There are essentially four issues in each appeal. The first is whether the primary judge erred in finding the respondent did not owe each appellant a duty of care to provide adequate support while the respondent’s investigations into the complaints were completed. If yes, the second is did the respondent breach that duty in each case. If yes, the third, arising from the respondent’s notice of contention, is did the respondent cause that appellant’s psychiatric injury. Although not in its notice of contention the respondent raised a fourth issue in its submissions, namely, if yes to those three questions, should the matter be remitted for a further assessment of damages.
Dalton J has helpfully set out the relevant facts and issues. I will add to these only as required to state my reasons for allowing each of the appeals, giving judgment for Ms Hayes, Ms Palmer and Ms Harris and remitting Ms Greenhalgh’s case to the District Court for a fresh assessment of damages.
Duty of care: general observations
For the following reasons, I consider the primary judge erred in concluding that there was no duty of care in each case because of the principles arising from Paige, O’Leary and Rogerson.
The 2002 decision of Paige makes clear that the appellants’ claims must fail insofar as they alleged the respondent’s breach of duty arose out of its conduct of the investigation of and decision-making relating to the complaints against them. Further, in Sullivan v Moody[8] the High Court rejected the notion that the State, or those acting under statutory obligations to report to the authorities those reasonably suspected of child abuse, owed a duty of care to those suspected. But the present appellants’ cases turned, not on solely the conduct of the investigation or the decision-making in relation to the complaints against them, but the respondent’s lack of support of each of them at the time of the complaints and the investigation. Nothing in Paige or Sullivan v Moody exempted the employer respondent from its pleaded duties in this case; to provide and maintain a safe workplace; to take all reasonable precautions for each appellant’s safety whilst engaged in employment, and not to expose her to risk of damage and injury of which it knew or ought to have known. Nor did anything in the cases exempt the respondent from the particularised aspect of those duties to provide reasonable support to each appellant following the complaints and during the resulting investigation.
[8](2001) 207 CLR 562.
In the 2004 case of O’Leary, the trial judge found that, whilst the employer owed O’Leary a duty to take reasonable care to avoid injury, and breached that duty, O’Leary’s psychological injury (adjustment disorder with depression) was far too remote; it could not be reasonably foreseen as a possible consequence of the employer’s conduct that O’Leary would suffer a recognised psychiatric injury. O’Leary appealed, contending that the employer’s treatment of him was likely to result in mental anguish of a kind that could give rise to a recognised psychiatric injury. The employer knew that he had previously taken time off work as he had provided a medical certificate stating that he suffered from an adult adjustment disorder. Spigelman CJ and Sheller JA dismissed the appeal, McColl JA dissenting. Spigelman CJ emphasised the distinction between stress and a recognised psychiatric illness[9] and held that, while the employer’s conduct was improper, it did not breach a duty of care.[10] Sheller JA also emphasised the distinction between emotional distress and recognisable psychiatric illness[11] but considered that on the evidence the employer had breached its duty of care to take reasonable care of its employee.[12] His Honour concluded, however, that, although the employer’s conduct was wrong and perhaps disgraceful, having regard to the psychiatric evidence it was open for the trial judge to find that the employer could not have reasonably foreseen that a possible consequence of its conduct was that O’Leary would suffer a recognised psychiatric injury so that no duty was owed in this case.[13]
[9][2004] NSWCA 7, [3].
[10]Above [24].
[11]Above [55].
[12]Above [38].
[13]Above [57], [67].
O’Leary turned on the findings of fact made by the trial judge on the evidence in that case. It provided no statement of principle precluding the present respondent from owing a duty of care to each appellant to provide reasonable support at the time of the complaints made against them and during the resulting investigation.
In the 2007 decision of Rogerson the State appealed from the trial judge’s award of damages to Owen Rogerson, a former police officer, said to arise from breaches of the State’s duty of care to safeguard him from foreseeable risk of psychiatric injury. Owen Rogerson’s older brother was Roger Rogerson, the notorious, disgraced former police officer. Owen Rogerson claimed his employer had a duty to protect him from discrimination and victimisation resulting from his relationship with his brother. The particulars relied on by Owen Rogerson to establish the breach were the advice of a legal officer that if Owen Rogerson was called as a witness before the Wood Royal Commission he might be asked questions about his association with his brother; the rejection of Owen Rogerson’s formal complaint about that advice; the rejection by the Casino Control Authority of Owen Rogerson’s nomination for secondment to that Authority; remarks by a police officer of lower rank who had been recommended for promotion ahead of Owen Rogerson; and the rejection of Owen Rogerson’s formal complaint about those remarks. The New South Wales Court of Appeal allowed the appeal, concluding that none of the matters complained of were breaches of a duty owed by the Police Service to Owen Rogerson to protect him from the risk of psychiatric injury. Handley AJA, with whom McColl JA and Hoeben J agreed, noted that:
“The incidents that [Owen Rogerson] found distressing and his numerous disappointments did not involve any breach of a common law duty of care owed to him by the Service. The only setback caused by his relationship with his brother was the rejection, by the Authority, of his secondment, but this was outside the control of the Service. Most of his other disappointments arose from the application of promotion procedures which he did not satisfy. No one…could give [Owen Rogerson] a guarantee that he would not suffer similar disappointments in the future.”[14]
[14][2007] NSWCA 346, [41].
The particularised breaches of duty alleged in Rogerson differed from those alleged in each of the present appellants’ cases. Nothing said in Rogerson precludes a finding that the present respondent, as employer, owed a duty of care to each appellant to adequately support her at the time of the complaints and the resulting investigation.
The respondent’s non-delegable duty as employer to each appellant was, in general terms, to take reasonable care to eliminate risks of injury, including psychiatric injury, which could be reasonably foreseen and avoided. In determining if that duty has been breached relevant factors include, but are not limited to, the nature and extent of the employment and express or implicit signs of vulnerability on the part of the employee.[15] The respondent knew the complaints involved allegations against each appellant of serious misconduct and that the investigation of those complaints would be prolonged. It ought to have known that the appellants, as conscientious managers of those providing essential services to vulnerable disabled people, would be placed under great stress by those allegations, which struck at the heart of their professionalism. In recent years, the community’s understanding of mental illness has incrementally expanded. The reasonable employer in the position of the respondent in 2009, although not expected to have medical expertise, could reasonably be expected to have known that prolonged workplace stress could detrimentally effect the physical and mental health of employees performing work like the appellants’ and that, if unsupported in the workplace, that stress could develop into mental illness. The possibility of psychiatric injury in such circumstances was real, not far-fetched or fanciful. The consequences for employees who become mentally ill in such circumstances could be catastrophic. So much was recognised by the respondent’s provision of free counselling to all employees including both the complainants and the appellants. The extent, nature, and reasonableness of the support the respondent employer was obliged to offer the appellant employees must be assessed in the context that the respondent was required to impartially investigate the complaints against the appellants.
[15]Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44, [24] (McHugh, Gummow, Hayne and Heydon JJ).
In light of the number and nature of the complaints, the respondent acted reasonably in removing Ms Hayes, Ms Greenhalgh and Ms Palmer from their roles in managing the complainants and in placing them in other positions, at least pending the completion of the investigation. But it should have ensured that each appellant (including Ms Harris who remained in her role) understood that the respondent was independently investigating the complaints and that, for those removed from their roles, this was not an indication that it had prejudged the likely outcome of the investigations. It should have briefed each appellant as to the complaints made against her and as to the investigation process. It should have ensured that each was provided with a support person of whom she could enquire about the progress of the investigation and with whom she could discuss concerns. There was nothing unreasonable about the respondent offering such support in those circumstances. In these circumstances, offering them the free departmental counselling service routinely available to all employees including the complainants did not discharge the respondent’s duty to each appellant. A more precise determination of the nature of this duty will require a consideration of the relevant facts of each appellant’s case including the nature of the work and signs of vulnerability to determine if the kind of harm each suffered was reasonably foreseeable: Koehler v Cerebos (Aust) Ltd.[16]
[16]Above.
I will now consider whether in each case the respondent owed a relevant duty of care; if so, whether it breached that duty; if so, whether the breach caused each appellant’s injury; and if so, whether judgment should be given for the amount of damages assessed by the trial judge or whether the case should be remitted for a fresh assessment. In undertaking this task it is not possible to avoid some repetition and overlap between the four cases.
Ms Hayes
Duty of care and breach (Ms Hayes)
I agree with Dalton J’s reasons for concluding that, by 5 January 2009, the respondent owed a duty of care to Ms Hayes to support her through the investigation process. In addition to the matters mentioned in [13], I particularly emphasise the following.
The respondent knew that Ms Hayes had been very distressed by the 2008 complaints. She became noticeably very upset when she was wrongly told by the respondent’s Ms Simpson in August 2008 that those complaints had been made out.[17] The respondent’s workplace health and safety officer, Ms Diane Cuskelly, saw Ms Hayes drive away from work, screeching her tyres. Ms Cuskelly was so concerned that she later rang Ms Hayes at home to check on her. The following month the respondent’s Ms Huig told Ms Hayes that the 2008 complaints were not made out.[18] The trial judge accepted that before Christmas 2008 the respondent’s Ms Wild, a residential care officer, told Ms Hayes that Ms Johnson, “was out to get” Ms Hayes. Although Ms Wild reported this to the respondent’s Mr Costello, the respondent took no action.[19]
[17]T-39 – T1-40, AB 39.
[18]T5-67, AB 407.
[19]Palmer & Ors v State of Queensland [2015] QDC 63, [165].
The respondent’s emails of 13 and 14 January 2009[20] would reasonably have led Ms Hayes to conclude that the respondent did not want the appellants to speak about the complaints, either to each other or to their union. The respondent published, through a departmental intranet, a local newspaper article dated 20 January 2009 reporting the demands of the complainants’ union for the “accused bullies” to be stood down.[21] Ms Hayes was distressed about media reports of the complaints.[22] The fact that the respondent’s Ms Pam Steele-Wareham had the role of liaising with both the complainants and the appellants undermined her ability to provide genuine support to the appellants. Indeed, Ms Steele-Wareham appeared to have sided with the complainants and prejudged the investigation in her unhelpful observation to Ms Greenhalgh and/or Ms Palmer (passed on to Ms Hayes) to the effect that, “there’s got to be something in it because there’s so many complaints.”[23]
[20]Exhibit 2A25-2A26, 2A27 and 2A31, AB 1019, 1020, 1021, 1023 and 1025.
[21]Exhibit 2A45, AB 1049.
[22]T2-44, AB 126.
[23]T2-8, AB 90.

Those circumstances, together with those referred to by Dalton J in her reasons, shows that the respondent’s lack of support of the kind discussed in [13] of these reasons to Ms Hayes after the 2009 complaints were made and during their investigation was a breach of its duty of care to her.
Evidence of causation (Ms Hayes)
There is no dispute that Ms Hayes suffered a recognisable psychiatric injury after the 2009 complaints but it remained for her to establish that the respondent’s breach of duty caused or materially contributed to her illness.
The principal evidence upon which she relied came from psychiatrist, Dr Andrew Byth, who examined her on 14 June 2011. She complained of adverse effects from stressful work events between 1 May 2008 and 31 October 2009. He diagnosed her as having an Adjustment Disorder with anxiety and depressed mood (Reactive Anxiety and Depression) in the mild to moderate range of severity, at times sharing features of the more substantial diagnoses of Panic Disorder and Major Depression. She underwent counselling and was prescribed an anti-depressant. Dr Byth considered her
“psychiatric condition was caused by her difficulty coping with allegations of harassment and bullying, which she complained were very slow to be investigated and resolved. She also complained of being verbally abused by one of her team leaders at work, and she felt her own manager had presumed she was guilty before the investigations were completed.”[24]
[24]Report of Dr Byth, “Re Ms Samantha Hayes” (15 June 2011), [13.2].
Her marked lack of confidence and her persistent hypersensitivity about work-related stresses made Dr Byth doubt that she will ever be able to return to work as a service manager or in similar roles managing large numbers of staff. He assessed her permanent psychiatric impairment at 25 to 50 per cent, caused as a result of stressful events in her work in 2008 and 2009. She was unlikely, he considered, to develop anxiety and depression of such intensity and resistance to treatment but for those stressful events which had led to the development of an ongoing Adjustment Disorder for which she will need specialist treatment over the next two years.
She had a past history of depression in 2007 when her brother died but Dr Byth considered this was an independent episode of Adjustment Disorder in response to stressful circumstances at that time and was unconnected.[25]
[25]Above [10.7].
He interviewed Ms Hayes again on 26 February 2014 by telephone. He noted that since his previous assessment she had taken voluntary medical retirement in December 2013. Her condition had not improved at all since his 2011 assessment. Indeed, she may have deteriorated; she now had some features of Major Depression and Panic Disorder.
Dr Byth gave oral evidence by telephone on 14 March 2014. The trial judge raised with him that Ms Hayes seemed to have felt unsupported by the respondent’s management and asked if this was significant in developing her serious condition. Dr Byth agreed, noting that Ms Hayes considered she had made a special effort to assist the respondent by trying to help Ms Johnson (in 2008) but Ms Johnson eventually complained about her. Dr Byth added:
“And then, at a later date, to have the [respondent] seem not to be supportive towards her over complaints from that same woman was extremely distressing to her. And I am sure that would have been likely to contribute to her decompensating after that.”[26]
[26]T5-20, l 21 – l 48, AB 360.
The judge asked about the impact of Ms Hayes not being permitted to talk about the complaints to anyone other than more senior management whom she saw as unsupportive (Ms Steele-Wareham). Dr Byth responded:
“I can see she felt that made her more isolated and or prejudged that she must have done something wrong if she was subjected to a gag about it. And she – I think it stopped the natural flow of communication in the office that she would have had and it made her feel ostracised or strange or different from the other workers. And I was surprised that that was expected of her. But – especially if there was some delay in the whole matter being addressed and resolved or investigated. But I’d imagine if she’d had more access to be able to talk freely to people as she chose she might’ve felt less isolated and less different from her other fellow employees and she might have seen the workplace as more supportive.
His Honour: Yes. And if she had the impression that the more senior management presumed that she was guilty, would the same situation apply with her as with the other two? ---Yes. Yes, your Honour.”[27]
[27]T5-21, AB 361.
Dr Byth provided a file note on 8 April 2014[28] concerning all appellants in which he stated the following. The union picketing of the Maryborough Office was “a definite contributing factor” to their illness, even for those appellants like Ms Hayes, who were not present for it. He added:
[28]Exhibit 42, AB 2785-2797.
“5.Also there was the complaints and then [the appellants] were not allowed to speak to one another and then they had the RCO’s targeting them, no one has met with them and I think when you add all those things the risk of their anxiety increasing is foreseeable.
6.I would agree that quite clearly that their injury would have been foreseeable when you consider all those circumstances.
Impact of Lack of Support
7.I think if management had said to them, “look I know this is hard, it’s going to be ok” they would have felt supported and had they been warned better at the time it might have made a difference but I remember something about that there was not management there supporting them at the time of the picketing.
...
10.I believe that they felt they had the impression of a snow job by management despite the evidence stating otherwise and a feeling of loss by the actions of senior management towards them.
11.It was like I believe a “snow balling” effect in terms of the development of their injury and factors continuing to increase their anxiety, as time went on and the fact they were regarded in their minds as guilty and I think the whole series of events just built up over time.
Investigation
...
14.I think a lot of it was the lack of support from Pam Steele Warham and that the RCO’s couldn’t be wrong and the feeling that management thought that they were guilty and so they were stood down.
15.I think in the case of these ladies developing the psychological injuries that they did it was an accumulation of factors, a steady build up.
...”(Errors in the original).[29]
[29]Above.
When cross-examined by the respondent’s counsel on 9 April 2014, Dr Byth agreed that he had no notes and no recollection that Ms Hayes complained that, in relation to the 2009 events rather than the 2008 events, she thought her manager was assuming she was guilty. Dr Byth agreed that an incident involving Ms Hayes’ neighbour[30] would be a significant feature in the development of her illness.[31]
[30]Recorded in Dalton J’s reasons at [158].
[31]T10-11, l 5 – l 12, AB 773.
Dr Byth also agreed that on 14 March he gave evidence that he was impressed that all appellants clearly linked their anxiety and depression to the same series of events.[32] Whilst he may not have made written notes of it, Dr Byth apprehended that all appellants thought the respondent considered they were guilty and did not believe them in relation to allegations made by junior staff. This was one of many factors to explain their developing anxiety and depression. He did not put this factor in his report or make notes of it because he felt there were many other factors which were sufficient to explain the appellants’ developing anxiety and depression; if he put in all relevant factors, the list would be “about six pages long”.[33] He maintained, however, he considered this was “a definite factor.”[34] The appellants became anxious when the picketing started and did not feel able to rely on their managers for support.[35] They felt unsupported by management both at the time of the picketing[36] and when they were being stood down from their roles.[37] They had the impression that the respondent perceived them as guilty and they had lost confidence in the management acting in their best interests.[38]
[32]T10-4, l 20 – l 30, AB 766.
[33]T10-16 – T10-17, l 20 – l 29, AB 778-779.
[34]T10-17, l 43, AB 779.
[35]T10-16, l 13 – l 19, AB 778.
[36]T10-19, l 40 – l 45, AB781.
[37]T10-20, l 1 – l 2, AB 782.
[38]T10-20, l 5 – l 10, AB 782.
Dr Byth recalled that all appellants complained that they were unsure when the investigation was to be conducted, when findings would be made, or if the case was continuing or had been dropped; there was a lack of information moving from management to them which they found upsetting and stressful. He agreed that the picketing and media coverage in a relatively small town significantly contributed to the appellants’ anxious and depressive states.[39] Later he added that all appellants told him, “they were sort of cut off from communication about what was happening, and the process could have been worsening, for all they knew, and – but that not knowing was very upsetting for them over quite a long period of months.”[40] He recalled one appellant, probably Ms Greenhalgh, stating that her manager asked how so many complainants could be wrong; “there must be some mud that’s going to stick”.[41] He did not put this in his report because there were so many other contributing factors. Dr Byth added that the fact that he “had to discriminate or choose some statements to put in the narrative doesn’t mean that [he] discount[ed] all other factors that might be contributing...there was plenty of other pieces of evidence of – or [Ms Greenhalgh’s] complaints of her feeling that there was a lack of support from management.”[42] He did not agree that there were many other factors which were much more significant. Dr Byth stated, “[w]ell I may not have written it down, but I’m – I think that was one of the major complaints they all had. It was apparent from all the other complaints they made.”[43]
[39]T10-18, l 1 – l 18, AB 780.
[40]T10-20, l 35 – l 37, AB 782.
[41]T10-21, l 1 – 1 3, AB 783.
[42]T10-21, l 15 – l 23, AB 783.
[43]T10-21, l 36 – l 38, AB 783.
The respondent’s counsel did not suggest to Dr Byth that Ms Hayes would have suffered her psychiatric injury irrespective of any failure of the respondent to provide her with reasonable support after the more serious complaints were made in 2009. Nor did counsel invite him to apportion the degree of responsibility for her illness according to any individual cause or causes.
In re-examination Dr Byth explained that after someone began to need treatment for psychiatric injury, subsequent stressors often had a greater effect because a person’s ability to cope and absorb shocks and challenges was diminished by anxiety and depression. He thought this had happened in each of the appellants’ cases:
“…there was an incremental increase in the anxiety and depression as each of these adverse events evolved at work, to a point where they eventually all saw psychiatrists and had antidepressant medication.”[44]
[44]T10-24, l 32 – l 34, AB 786.
Finding on causation (Ms Hayes)
It is true that the evidence to support causation in Ms Hayes’ case was not without difficulty. The primary judge dealt with Ms Palmer’s case first, then Ms Harris’, Ms Hayes’ and finally Ms Greenhalgh’s. In Ms Hayes’ case, after carefully considering Dr Byth’s evidence, [45] his Honour stated:
“Again I accept the evidence of Dr Byth and accept that the matters referred to him caused Ms Hayes’ psychiatric condition. I also accept his evidence to the effect that it was the combined effect of all of those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. The reasoning is the same as with the other plaintiffs.”[46]
[45]Palmer & Ors v State of Queensland [2015] QDC 63, [171] – [175].
[46]Above [176].
In referring to “the same as with the other plaintiffs”, I take his Honour to be including a reference to the following comments he earlier made as to causation in Ms Palmer’s case:
“I also accept that the effect of Dr Byth’s evidence is that it was the combined effect of all those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. This is not a case where there were a number of factors acting and the evidence does not permit an inference to be drawn that a relevant factor or factors was at least a cause of [Ms Palmer’s] injury; rather it is a case where there were a number of factors which together produced the plaintiff’s injury, and in those circumstances each of those factors is a cause of the injury unless in the case of a particular factor its contribution can be characterized as de minimis. The analogy is with the dust in Bonnington Castings...” (footnotes omitted).[47]
[47]Above [112].
It follows that his Honour concluded that if the respondent breached its duty to support Ms Hayes during the investigation process, Dr Byth’s evidence established that this was a cause of her psychiatric injury.
I respectfully agree with the primary judge as to causation. Dr Byth’s evidence was that many factors in combination, including the incident with the neighbour, caused Ms Hayes’ illness. But his expert opinion, unshaken in cross-examination, was to the effect that all appellants perceived the respondent’s management team had not provided them with adequate support at the time of the investigation of the complaints, including the 2009 complaints, and that, although there were many other work-related factors which also contributed in combination, this perceived lack of support from the respondent was “one of the major complaints” and a “definite cause” in the development of each appellant’s psychiatric injury. As I have explained, there was ample evidence of the respondent’s lack of support to each appellant at the relevant time so that their perception was accurate. Dr Byth specifically identified that the respondent’s direction that the appellants not discuss the investigation with each other was a definite cause of each appellant’s psychiatric injury. Another was the respondent’s treatment of the appellants so that each reasonably concluded it had pre-judged the outcome of the investigation and considered them guilty of the complaints. Dr Byth considered that this was inadequate support from the respondent.
Like the primary judge, I consider that Dr Byth’s evidence established that the respondent’s breach of duty to provide adequate support was a legal cause of Ms Hayes’ psychiatric injury. Ms Hayes demonstrated that, although many other factors in combination also contributed, it was more probable than not that the respondent’s breach of duty in not providing that support materially contributed to her psychiatric injury: see Gummow, Hayne and Crennan JJ observations in Amaca Pty Ltd v Booth.[48] In determining causation, judges should keep in mind that the term “more probable” means more than merely possible but it does not require certainty or precision; it is a relatively low standard to reach and accommodates a level of uncertainty of proof: see Kiefel J’s observations in Tabet v Gett.[49] As the House of Lords explained in Bonnington Casting Ltd v Wardlow[50] and the primary judge appreciated, a negligent breach is a cause of damage if its contribution is real, material and not negligible. The present case can be distinguished from those where there are a number of separate possible causes and the court must determine which was the single probable cause of the damage.[51] Here, there were many matters which in combination caused the injury, one of which was the respondent’s breach of duty. This breach of duty was itself a real, material and not negligible cause.
[48](2011) 246 CLR 36, [70] and [71].
[49](2010) 240 CLR 537, [111], [145] and [148] (Kiefel J); [65] (Hayne and Bell JJ agreeing); [100] (Crennan J agreeing).
[50][1956] AC 613, 621 (Lord Reid); 618 (Viscount Simonds agreeing) and 623 (Lord Tucker agreeing).
[51]See, eg, Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22 [81], [82] and [86].
Damages (Ms Hayes)
The trial judge, although not finding that the respondent owed any duty of care to each appellant, properly and conscientiously undertook the laborious task of assessing damages in case there was a different result on appeal. His Honour described these as “precautionary assessments.” In Ms Hayes’ case he assessed damages at $731,008.53.
The respondent contended in respect of each appellant that, as the primary judge described these assessments as precautionary, and as there were many causative factors other than the respondent’s breach of duty, if the appellants were successful, this Court should not simply adopt the primary court’s assessment of damages. It argued that this Court should instead remit the matter to the District Court for a fresh assessment to apportion it’s liability. It emphasised that the primary judge, when first assessing damages in Ms Palmer’s case, stated:
“In my opinion it would be artificial for me to attempt an apportionment on the basis of some hypothetical division of stressors into those for which the [respondent] is liable and those for which the [respondent] is not liable, in circumstances where on my findings the [respondent] is not liable for any of them. All I can do is make an assessment on the basis that the [respondent] is liable for the [appellant’s] condition, although if the contrary view as to negligence were taken elsewhere this issue would have to be revisited.”[52]
[52]Palmer & Ors v State of Queensland [2015] QDC 63, [228].
In support of this argument, the respondent also relied on the 2006 New South Wales Court of Appeal decision in State of New South Wales v Burton.[53] Mr Burton was employed as a marksman with a specialist unit in the New South Wales Police Force. He developed Post Traumatic Stress Disorder (PTSD) after coming under fire in a siege. He successfully sued the State for failing to provide him with proper psychiatric and psychological treatment and counselling in the aftermath of the siege. There was conflicting evidence as to whether counselling would have assisted his PTSD. The trial judge accepted evidence from a doctor to the effect that Mr Burton’s condition was caused by the shooting incident and the State’s omission to provide counselling further exacerbated his PTSD. The doctor was not cross-examined as to what he meant by “caused” or “exacerbated.” On appeal, Basten JA, with whom Spigelman CJ and Hunt AJA agreed on this point, held that, as the Police Service recognised Mr Burton’s work involved a risk of psychological or psychiatric harm, his PTSD was foreseeable.[54] Spigelman CJ, Hunt AJA agreeing, held that as Mr Burton’s PTSD was caused by being shot at and not by inadequate treatment, the relevant loss was the loss of opportunity for a better outcome.[55] There was little more than tangential evidence that early therapeutic intervention would have reduced the risk of his suffering no PTSD so that it could not be inferred the State had materially contributed to his loss. There was no evidence, the court concluded, that the lack of counselling was a material contribution to the development of the PTSD.[56]
[53][2006] NSWCA 12.
[54]Above, [41].
[55]Above, [24]-[28].
[56]Above, [14].
Burton may now be of questionable authority as it preceded the 2010 High Court decision of Tabet v Gett where Gummow A-CJ, Hayne, Crennan, Kiefel and Bell JJ held that in a claim in negligence arising from personal injury, the loss of a chance of a better medical outcome is not compensable damage. Similar observations were made even more recently by French CJ, Bell, Keane, Nettle and Gordon JJ in Robinson Helicopter Company Incorporated v McDermott.[57]The present case, unlike Burton, was never presented as a loss of a chance case. Dr Byth’s evidence was not that the appellant would have had a better outcome if she had been properly supported by the respondent; it was that this lack of support was a legal cause of each appellant’s illness.
[57][2016] HCA 22, [86].

Dr Byth did not consider Ms Hayes’ condition was the exacerbation of a pre-existing disorder or that the respondent’s breach of duty had accelerated a pre-existing vulnerability. Nor was it that there was a subsequent event which exacerbated her injury. It was that, in combination with many other factors, the respondent’s lack of support on its own was a real, material and not negligible cause of her injury. Unlike the expert medical practitioners in Burton, Dr Byth was cross-examined. He maintained that in his opinion the respondent’s lack of support for Ms Hayes and the other appellants during the investigation process was a definite cause of their psychiatric injury. As I have explained, Dr Byth’s evidence left open the reasonable inference, which the trial judge drew and with which I agree, that the respondent’s lack of support for Ms Hayes after January 2009 was a definite, real and material cause of her injury. As a result the court treats the damage caused as certain. This approach is sometimes known as the “all or nothing rule:” see Kiefel J’s observations in Tabet v Gett.[58] Once an appellant establishes causation in these circumstances, it is for the respondent to prove with some reasonable degree of precision on the balance of probabilities that other factors for which it was not responsible contributed to the injury so as to warrant an apportionment: see Purkess v Crittenden.[59] The respondent has not demonstrated with any precision that there should be such an apportionment or what that apportionment might be. It could have done so at the trial but did not. For these reasons I do not consider it is necessary to remit Ms Hayes’ case to the District Court for an assessment of an apportionment of damages.
[58](2010) 240 CLR 53, [113] and [150] (Kiefel J); [65] (Hayne and Bell JJ agreeing); [100] (Crennan J agreeing).
[59](1965) 114 CLR 164, 168 – 169 (Barwick CJ, Kitto and Taylor JJ).
Conclusion (Ms Hayes)
It follows that I would allow Ms Hayes’ appeal, set aside the order of the primary court giving judgment for the respondent, and instead give judgment in her favour in the sum of $731,008.53.
Ms Greenhalgh
Duty of care and breach (Ms Greenhalgh)
Unlike Dalton J, I consider that the respondent also breached the duty it owed to provide support to Ms Greenhalgh after the 2009 complaints. The fact that the respondent moved her to a new position which she had previously sought only two weeks earlier than otherwise planned, did not absolve it from that duty. Her new position, although in a different section of the respondent’s Maryborough office, still required her to work in the same office building as Ms Johnson so that Ms Greenhalgh was by no means immune to the difficult, additional stressors in the workplace resulting from the 2009 complaints.[60] She was upset by the picketing, so much so that, in January 2009, she submitted a workplace injury report form in which she stated she felt harassed, stressed, intimidated and bullied by the picketers.[61] It followed that the respondent from that time was aware of her distress and vulnerability yet did nothing to support her.
[60]Palmer & Ors v State of Queensland [2015] QDC 63, [44].
[61]Exhibit 2A43, AB 1045.
Instead, shortly after the picketing, Ms Steele-Wareham asked Ms Greenhalgh how 60 complainants could be wrong,[62] understandably leading Ms Greenhalgh to conclude that the respondent had prejudged the issue and abandoned her. By this time, she was being managed by the Sunshine Coast office but she felt a lack of management support within the building in Maryborough. She had no one within the building to whom she could turn for support.[63] Her new manager instructed her not to have any contact with workers from her previous section, not just those who made the complaints. The primary judge found that this upset her and that this direction was not consistent with the requirements of her new position.[64] She became so upset on that occasion that she left work and went home. The trial judge accepted that Ms Steele-Wareham unhelpfully told Ms Greenhalgh, on two occasions when discussing her concerns about the complaints, that she should “suck it up.”[65]
[62]Palmer & Ors v State of Queensland [2015] QDC 63, [45].
[63]T2-69, l 43 – l 45, AB 151.
[64]Palmer & Ors v State of Queensland [2015] QDC 63, [49].
[65]Above, [210].
The emails of 13 and 14 January 2009[66] would have led Ms Greenhalgh to conclude that the respondent did not want the appellants to speak about the complaints to each other or to their union. Another example of the respondent’s lack of support to all appellants was its distribution over the departmental intranet of the local newspaper’s article of 20 January 2009.[67]
[66]Exhibit 2A25 (AB 1019); 2A29 (AB 1023); 2A31 (AB 1025).
[67]Exhibit 2A45 (AB 1048).
It was therefore reasonably foreseeable to the respondent that Ms Greenhalgh was vulnerable. If she did not receive appropriate support within the workplace during the complaint investigation process, of the kind discussed in [13], the respondent should have foreseen that she could suffer psychiatric illness, rather than mere unhappiness or stress. This was so, even though she had changed her role to a position which she had sought. She was still working in the same small building where Ms Johnson and the other complainants worked. She was still living in the same provincial town as Ms Johnson and the other complainants. The discord within this workplace was well publicised in the local media. The consequences of psychiatric injury can be reasonably expected to be devastating to a worker’s health and finances. There was nothing unreasonable about the respondent offering such support. As noted in Ms Hayes’ case, there was no reason to conclude that the cost of providing this support would be excessive. For these reasons, I consider the respondent owed a duty of care to Ms Greenhalgh to provide support to her after the 2009 complaints and during the investigation process.
As in Ms Hayes’ case, the respondent, in not providing her with that support, breached that duty.
Evidence of Causation (Ms Greenhalgh)
In discussing causation in Ms Greenhalgh’s case, the primary judge referred to the evidence of psychiatrist, Dr Grey, who examined her for WorkCover and provided a report in May 2010. Dr Grey noted her condition deteriorated after a complaint of racial discrimination in January 2010 so that it would take a further nine to 12 months before her condition stabilised.[68] His Honour accepted Dr Byth’s evidence that it was the combined effect of a number of matters which caused Ms Greenhalgh’s psychiatric condition. His Honour considered, that whilst a number of matters in combination caused her psychiatric injury, the respondent’s lack of support was a material cause. His Honour noted, however, that Ms Greenhalgh’s case was complicated by the 2010 complaint to the Anti-Discrimination Tribunal which was not relevant to her present action and for which the respondent could not be held liable.[69]
[68]Above, [194].
[69]Above, [200] – [201] and [271].
As the primary judge appreciated, Dr Byth’s evidence was critical to Ms Greenhalgh’s proof of causation. He examined her on 25 August 2011 and diagnosed Major Depression with prominent associated anxiety and agitation. Her complaints of flashbacks about stressful events at work are symptoms resembling PTSD but could be seen as part of her Major Depression.[70] She has been receiving treatment since 2009 from her GP, psychologists and psychiatrists. She had not responded to a wide range of anti-depressant medications and a major tranquiliser and was only partially responding to her current anti-depressant. She will need specialist psychiatric treatment over at least the next three years.[71] Dr Byth considered that following a series of stressful events in her work from 2008 to 2010 she was suffering from Major Depression with prominent associated anxiety and agitation. Her condition was caused by her difficulty coping with stressful work events, including her complaint of harassment by a team leader and her being distressed by unfounded allegations by other staff which required extensive investigation.[72] He considered she was suffering from a permanent psychiatric impairment of 25 to 50 per cent. There were no other contributing factors.[73]
[70]Report of Dr Byth, “Re Ms Pamela Greenhalgh” (8 September 2011), [10.6].
[71]Above, [11.2].
[72]Above, [13.2].
[73]Above, [14.1].
Dr Byth noted that in early 2010 she returned from holidays and was “hit with a complaint to the Antidiscrimination Commissioner”[74] by a staff member. She said that this worsened her depression and the case was stressful. Although “the case was dropped in 2011,” she said that no one told her this until months later.[75] (This 2010 complaint was unrelated to her claim the subject of this appeal.)
[74]Above, [3.8].
[75]Above, [3.8].
When questioned by the trial judge on 14 March 2014, Dr Byth stated that he considered Ms Greenhalgh was in the same position as Ms Hayes in that she knew that serious allegations had been made against her but for a long time was not aware what they were. She had quite direct contact with Ms Johnson who told her “I’m not out to get you.” This alarmed Ms Greenhalgh who feared that the opposite was true. Dr Byth considered that instructions from the respondent’s managers to the appellants not to talk about the complaints to anybody suppressed the appellants’ support network to chat and discuss stressful work issues. Ms Greenhalgh felt this was unfair, awkward and alienating and she interpreted it as a sign that, before the complaints were investigated, the respondent considered she must have done something wrong.[76]
[76]T5-22 – T5-23, AB 362 – 363.
I have already discussed Dr Byth’s memorandum of 8 April 2014 in Ms Hayes’ case at [26] of these reasons insofar as it relates to all appellants generally. Dr Byth specifically noted in respect of Ms Greenhalgh that she “felt completely unsupported and unprotected.”[77] He did not think in the long term she would be able to sustain functioning in her employment. She was having adverse side effects from her medication but may be helped by “ECT”. He would not be surprised if she could not cope for much longer in the workplace and was unable to work until 55 as she had planned.
[77]Exhibit 42 [18], AB 2787.
When cross-examined by the respondent on 9 April 2014, Dr Byth agreed that the stressful events he referred to in his 2011 report were those Ms Greenhalgh described and it was those events which caused her depressive condition. Counsel suggested that none of those matters concerned anything said or done to her by senior management and in particular she did not complain that Ms Steele-Wareham said something like, “how could 60 RCO’s all be wrong?” Dr Byth responded that he thought he remembered something like that, although he must not have written it down.[78] Later it was put to him that no-one except Ms Palmer complained about any pre-judgement by management in respect of the 2009 complaints. Dr Byth responded that Ms Greenhalgh said she thought management considered the appellants were guilty before the investigation was conducted. He conceded he did not make notes of this but added that all appellants definitely felt that management considered them guilty.[79] All thought that the respondent’s management had cut them off from communicating with each other about what was happening; they did not know what was happening with the investigation over quite a long period of months.[80] He was pretty sure that Ms Greenhalgh said that when she complained to her manager, she was told something like, “how can 60 of those support officers be wrong”; there were so many complaints, some mud would stick. Although Dr Byth did not make a note of this, that was his recollection. He considered that, the fact that he did not make a note did not mean this was not crucial. It was a contributing factor to her condition. She made many statements about her apprehension of the lack of support from management. He refused to concede that there were many other factors which were much more significant. The lack of support, he considered, was a major complaint of all appellants and was apparent from their other complaints.[81]
[78]T10-7 – T10-8, AB 769 – 770.
[79]T10-16, AB 778.
[80]T10-20, l 35 – l 38, AB 782.
[81]T10-21, AB 783.
Dr Byth agreed in cross-examination that the complaint of racial vilification against Ms Greenhalgh in early 2010 was very stressful and exacerbated her condition.[82]
[82]T10-22, l 8 – l 20, AB 784.
In re-examination he agreed that he considered Ms Greenhalgh’s development of depression commenced with Ms Johnson’s 2008 complaints. He was asked what significance he placed on events which occurred after those symptoms began to develop. He responded, “I thought they had a cumulative effect and that the – they were adding on top of each other and the – they were occurring in a series that evolved in such a way that there was insufficient time for the patient to absorb and cope with one stressful event before the next one occurred, and they were snowballing, increasing in severity to the point where they eventually formed clinically significant anxiety and depression.”[83] In September 2008 Ms Greenhalgh took advantage of the free employee assistance scheme and obtained counselling about work-related stressors and she was able to keep working. Subsequent stressors, Dr Byth explained, often have a greater effect as there is an incremental increase in anxiety and depression as each of these adverse events evolve at work to a point where they eventually require psychiatric intervention and anti-depressant medication.[84]
[83]T10-24, l 7 – l 12, AB 786.
[84]T10-24, l 14 – l 34, AB 786.
The respondent’s counsel did not suggest to Dr Byth that Ms Greenhalgh would have suffered psychiatric injury irrespective of any failure of the respondent to provide her with reasonable support after the 2009 complaints. Nor did counsel invite him to apportion the degree of responsibility for her illness to any individual cause or causes.
Finding on causation (Ms Greenhalgh)
In light of Dr Byth’s evidence concerning Ms Greenhalgh specifically, as well as his general evidence concerning all appellants discussed in [26], [28], [29] and [31], for the reasons I have given at [35] and [36], I am satisfied that the respondent’s lack of support for Ms Greenhalgh following the 2009 complaints was a real, material and not negligible cause of her psychiatric injury. That injury was then exacerbated by the 2010 complaint with which this appeal in not concerned.
Damages (Ms Greenhalgh)
As with Ms Hayes, the respondent contended that if Ms Greenhalgh was successful on appeal, her case should be remitted to the District Court so that damages can be re-assessed as the respondent should not be held liable for the whole of her injury.
Part of that contention must be rejected for the reasons I have given in Ms Hayes’ case at [40] to [41]. But for the following reasons I accept that contention in part. The trial judge particularly noted that in Ms Greenhalgh’s case there was a later significant stressor arising from a 2010 complaint which exacerbated the psychiatric injury caused by the respondent. That complaint to the Anti- Discrimination Tribunal was independent of the matters litigated in this action. That conclusion was consistent with the evidence of both Dr Grey and Dr Byth. His Honour chose not to assess damages by isolating the effect of that subsequent injury.[85] It follows that his Honour’s assessment of Ms Greenhalgh’s damages at $395,870.80 at trial failed to take into account the exacerbating effect of the 2010 complaint for which the respondent is not responsible in this action. For these reasons, her case must be remitted to the District Court for a fresh assessment of the respondent’s liability for damages, excluding the exacerbating effect of the 2010 complaint.
[85]Palmer & Ors v State of Queensland [2015] QDC 63, [271].
Conclusion (Ms Greenhalgh)
It follows that in Ms Greenhalgh’s case the appeal should be allowed, the order below giving judgment for the respondent set aside and the matter remitted to the District Court for an assessment of damages.
Ms Palmer
Duty of care and breach (Ms Palmer)
I agree with Dalton J’s reasons for concluding that, from January 2009, the respondent owed Ms Palmer a duty to take reasonable care to ensure that she did not suffer psychiatric injury and that, knowing the significance of the 2009 complaints, it was reasonably foreseeable that if it did not offer adequate support to her of the kind discussed at [13] of these reasons, she might be at risk of psychiatric injury, not just distress. There was nothing unreasonable about the respondent offering such support in those circumstances. The consequences for Ms Palmer if the risk eventuated could be devastating to her physical health and her ability to earn income. As in Ms Hayes’ and Ms Greenhalgh’s cases, there is no reason to conclude that the cost of providing adequate support would have been excessive.
I emphasise that the respondent was aware of her vulnerability. In a workplace injury report form dated 19 January 2009 she stated she was “sick and anxious” about the allegations and appeared distressed about not being permitted “to perform the duties of [her] appointed position.”[86] After the picketing the following day she completed another workplace injury report form stating that the incident “felt threatening and intimidating” and that she was suffering from psychological stress.[87] On 2 February 2009 Ms Steele-Wareham asked her, “How can all [the complainants] be wrong?” Ms Palmer began to cry but Ms Steele-Wareham did not comfort her.
[86]Exhibit 2A40, AB 1041.
[87]Exhibit 2A44, AB 1046.
I also agree with Dalton J’s reasons for finding the respondent breached that duty.
Evidence of causation (Ms Palmer)
The trial judge, as in Ms Hayes’ and Ms Greenhalgh’s cases, determined that Ms Palmer’s psychiatric injury was caused by the combined effect of various matters identified by Dr Byth. His Honour reasoned that all these matters were legal causes of that injury unless they were “de minimis.” The judge rejected the notion that the respondent’s lack of support for Ms Palmer was “de minimis,” even if she was suffering a psychiatric injury by March 2009 caused in part by factors other than those for which the respondent was responsible. The effect, his Honour considered, of the additional stressors after 17 March 2009 was that she suffered a different injury with a potentially different course and level of severity.[88]
[88]Palmer & Ors v State of Queensland [2015] QDC, [112] and [113].
Dr Byth’s evidence was again critical to establish causation in Ms Palmer’s case.[89] Dr Byth interviewed Ms Palmer on 21 July 2011. She had no history of psychological problems prior to 2008. She complained of adverse effects from stress in her work around September 2008 and following. She complained of feeling “shattered and dumbfounded” when in April 2009 she was interviewed by investigators about the complaints.[90] She was upset that the senior manager (Ms Steele-Wareham) made clear she thought Ms Palmer and the other appellants were guilty and solicited more complaints from others.[91] Ms Palmer was upset that her reputation was at stake in a small town and that the complaints were reported in the local newspaper.[92] She was distressed when in May 2009 her claim for WorkCover was rejected.[93] Although Ms Palmer was moved away from Ms Johnson to a different part of the building, Ms Johnson began to enter the building near Ms Palmer’s workstation. Ms Palmer felt targeted and had to leave her workstation.[94] When Ms Palmer was advised the investigation was completed, she requested to return to her former work and was very upset when this request was not granted. She had a “massive panic attack, and [she] had to leave the meeting.”[95]
[89]Report of Dr Byth, “Re Mrs Tanya Palmer” (3 August 2011).
[90]Above [3.1].
[91]Above [3.3].
[92]Above [3.4].
[93]Above [3.7].
[94]Above [3.9].
[95]Above [3.10].

Dr Byth noted that Ms Palmer was suffering from Major Depression with prominent associated agitation and anxiety. She had symptoms resembling Panic Disorder and PTSD. Her condition arose following a series of stressful events in her work in 2008 to 2010.[96] Her “psychiatric condition was caused by her difficulty coping with allegations about her at work, and with her being stood aside and placed in other work while she was being investigated over a long period. She thought she was being victimised by a number of staff, including a particular Team Leader and that her management presumed she was guilty until the matter was eventually investigated.”[97] She was suffering from a permanent psychiatric impairment of 55 to 75 per cent.[98]
[96]Above [14.1].
[97]Above [14.2].
[98]Above [15.1].
In a later report of 26 February 2014, Dr Byth noted that she had not improved since 2011 and had been unable to return to paid work. She was “living the sheltered and reclusive life of a psychiatric invalid.”[99]
[99]Above [6.4].
When questioned by the trial judge on 11 March 2014 about the effect on Ms Palmer of not being told the details of the allegations against her for some months, Dr Byth responded:
“Not knowing the exact nature of the complaints and the details of them would probably be very distressing to a person because of their sort of unknown quality and imagining the worst in her frame of mind when she was very anxious and sleeping poorly and agitated about it. I think she [would have] found the indeterminate quality of the – about the allegations, was quite disturbing.”[100]
[100]T5-10, l 24 – l 29, AB 350.
The judge asked about the effect on her of being taken out of her previous role arranging rosters and not being given meaningful work. Dr Byth responded that she was upset about the complaints and their effect on her reputation but she was also upset at being given less meaningful work and this “added to her decompensation.” Her mildly obsessive compulsive pre-morbid personality trait would have contributed to the severity of her condition in that she would not be flexible at adjusting happily to a changed role giving her less important work.[101] When asked about the effect of her perception that some in management were assuming she was guilty of the things complained of, Dr Byth stated that she viewed this as very unfair, contrary to natural justice and quite disturbing. It was one of the factors leading to a snowball effect in her anxiety and depression and, eventually, making her hypersensitive about the work environment. She was very offended and distressed that her employer did not appear to be acting in her interests.[102]
[101]T5-11, l 35 – l 45, AB 351.
[102]T5-12, l 5 – l 20, AB 352.
The judge asked Dr Byth, whether Ms Palmer had sensed she was supported by the respondent she would have developed her psychiatric injury to the same extent and severity. Dr Byth responded that it may well have been mitigated. There was an accumulation of events which flowed into each other before the previous stressor had abated. With this build up, any circuit breaker would have been advantageous. A period of sick leave in the middle would have been helpful. She could well then have not got to the point where she was panicking and hypersensitive at work. Had she had more support, such as time off work, earlier treatment, alternative duties or an alternative location for duties, or if she had been less exposure to Ms Johnson, these things “[could have] probably curtailed her anxiety and depression building up so severely and, in the end, affecting her confidence so much.”[103]
[103]T5-13, l 5 – l 23, AB 353.
Some of Dr Byth’s file note discussed in Ms Hayes’ case at [26] of these reasons is also relevant to Ms Palmer. Of specific relevance to Ms Palmer, he stated he did not think she could ever return to her present work. She was on a higher dosage of anti-depressants, over-sensitive, almost phobic, and not doing well at all. She may have treatment resistant, chronic depression.[104]
[104]AB 2786.
Some of the respondent’s cross-examination of Dr Byth on 9 April 2015 discussed by me in considering Ms Hayes’ case at [27] and [28] of these reasons is also relevant to Ms Palmer. Of particular relevance to Ms Palmer’s case, Dr Byth agreed that Ms Palmer’s obsessive compulsive personality traits made it difficult for her when she was stood aside from her position. She saw her delegation to work of lesser importance after the complaints were made as a “pretty significant blow.”[105] She considered she was an expert in her rostering position.[106] Dr Byth confirmed she still needed significant doses of anti-depressant medication and that she had earlier made clear that she was concerned that senior management thought she and the other appellants were guilty of the complaints.[107]
[105]T10-12, l 2, AB 774.
[106]T10-12, l 7 – l 9, AB 774.
[107]T10-25, AB 787.
The respondent’s counsel did not suggest to Dr Byth that Ms Palmer would have suffered her significant psychiatric injury irrespective of any failure of the respondent to provide reasonable support to her after the complaints were made. Nor did they invite him to apportion the degree of responsibility for her illness to any individual cause.
When these aspects of Dr Byth’s evidence are considered together with the relevant aspects of his evidence which I have already discussed in Ms Hayes’ cases as relevant to all appellants at [28] and [29], for the reasons given in Ms Hayes’ case at [35] and [36], I am satisfied that the respondent’s lack of support for Ms Palmer after January 2009, although not the only cause, was probably a real, material and not negligible cause of her significant psychiatric injury.
Damages (Ms Palmer)
As in the other appellants’ cases, the respondent contended that, if the appeal is to be allowed, Ms Palmer’s case should be remitted to the District Court for damages to be assessed, given the multi-factorial causes of her psychiatric injury. The respondent again emphasised that the judge assessed damages only on a precautionary basis[108] and Burton’s case.
[108]Palmer & Ors v State of Queensland [2015] QDC 63, [219].
As I have noted, the primary judge in his reasons considered Ms Palmer’s case first. His Honour rejected the respondent’s contention that she should receive little in the way of damages on the basis that only a small percentage of her problems could be attributed to the respondent.[109] In doing so, his Honour determined that, where a plaintiff is suffering a psychiatric injury caused by numerous stressors for which the respondent is liable only for one or some, but the stressors the subject of the breach are significant in the development of the condition, the respondent has caused that injury. Whilst noting the artificiality of assessing damages having found that none of the factors which contributed to the plaintiff’s psychiatric condition were the respondent’s responsibility, his Honour found that the respondent had not shown, with any reasonable degree of clarity, to what extent Ms Palmer would have suffered psychiatric injury in any event in the absence of any particular negligent stressor.[110] Noting these difficulties, his Honour considered that his task was to assess damage on the basis that the respondent was liable for Ms Palmer’s condition, observing that, if the contrary view (to his) as to negligence were taken elsewhere, (that is, on appeal) this would have to be revisited.[111]
[109]Above, [223] and [224].
[110]Above, [226].
[111]Above, [228].
In so stating, and in the use of the term “precautionary assessment,” his Honour was merely recognising that he was required to assess damages, doing the best he could on the evidence, in case his finding that the respondent did not owe the appellants a duty of care was overturned on appeal. His Honour seems also to have identified the possibility that, on appeal, this Court might determine that the respondent was liable for only a calculated portion of Ms Palmer’s psychiatric injury. As I have explained, I consider the respondent’s lack of support for Ms Palmer following the 2009 complaints was a real, material and not negligible cause of her psychiatric injury. As I have explained in Ms Hayes’ case at [40] - [41], once Ms Palmer showed the respondent’s breach was a material cause of her illness, the respondent was responsible for all her damages. The respondent did not establish that Ms Palmer’s damages should be apportioned to reflect another cause or causes or that the respondent’s breach merely accelerated a pre-existing disorder or, unlike in Ms Greenhalgh’s case, that her illness was exacerbated by a subsequent event. In those circumstances, the judge was right to assess damages on the basis that the respondent was liable for all Ms Palmer’s psychiatric injury, the respondent’s breach of duty probably being a material cause. It follows that it is not necessary to remit the question of the assessment of Ms Palmer’s damages to the District Court.
Conclusion (Ms Palmer)
In Ms Palmer’s case, I would allow the appeal, set aside the order giving judgment for the respondent and instead give judgment for her in the sum of $597,139.68.
Ms Harris
Duty of care and breach (Ms Harris)
In Ms Harris’ case, too, I agree with Dalton J’s reasons for finding that it was reasonably foreseeable to an employer in the position of the respondent that, if it did not support Ms Harris in the workplace in the ways identified in [13] following the 2009 complaints, she might suffer psychiatric harm. I emphasise that the respondent, through its manager Mr Costello, knew Ms Harris was distressed about Ms Johnson’s difficult behaviour but did nothing to curtail that behaviour. When told of the 2009 complaints, Ms Harris took a week’s stress leave and completed a workplace injury report form.[112] The respondent should have known that she was vulnerable to psychiatric injury if not then supported in the workplace. Requiring the respondent to provide support of this kind was entirely reasonable in the circumstances.
[112]T4-72, l 30, AB 327.
I am satisfied the respondent breached that duty in the following ways. The respondent should have ascertained that the January 2009 complaints were also made against Ms Harris and given consideration as to how to support her through the investigation, especially as she was still working with some who had made serious complaints against her. It should have informed her of the complaints in a timely way. Once Ms Steele-Wareham became aware that Ms Harris was the subject of the complaints, the respondent should not have left her working with those who had complained directly against her, particularly Ms Johnson, without strong and appropriate support. The respondent did not give her suitable support tailored to her needs other than written information about the department’s free counselling service, available to all employees including the complainants.[113] Ms Steele-Wareham made inappropriate comments to Ms Harris’ co-workers which were reported to Ms Harris and which strongly suggested that Ms Steele-Wareham had pre-judged the complaints and considered the appellants, including Ms Harris, were at fault, even though the investigation was ongoing and no findings or conclusions had been reached.[114] The respondent’s lack of support was also manifested in the email of 14 January 2009, in which it sought to stop Ms Harris communicating with others subject to complaints.[115]
[113]T4-83, l 5 – l 17, AB 338.
[114]T4-75, l 38 – l 46, AB 330.
[115]Ex 2A29 (AB 1023).
Evidence of causation (Ms Harris)
The primary judge, after analysis of the psychiatric evidence,[116] accepted Dr Byth’s evidence and found that some of the pleaded breaches which were established, together with other things, caused Ms Harris’ psychiatric injury. For the reasons he gave in Ms Palmer’s case, each was a legal cause of the condition.[117]
[116]Palmer & Ors v State of Qld [2015] QDC 63, [141]-[149].
[117]Above [150].
Like the primary judge, I consider Ms Harris established that, accepting the respondent breached its duty to Ms Harris, this breach caused her psychiatric injury. That conclusion is supported by the following aspects of Dr Byth’s evidence specifically relevant to Ms Harris.
Dr Byth originally examined Ms Harris on 26 July 2011.[118] In around 2000 she had been prescribed anti-depressants for two years for menopausal symptoms and mood swings. (Dr Byth did not suggest this had any causal relationship to her current condition). She complained of adverse effects from stress in her work in 2009 and 2010. She reported difficulties since Christmas 2008 with Ms Johnson and another employee.[119] Ms Harris told Dr Byth she had stress leave in March 2009, undertook counselling and commenced anti-depressant medication.[120] In April 2009 she was devastated when she heard that she and eight others were being investigated. She was distressed by the nature of the allegations which were later found to be unsubstantiated. She loved her job and wanted to return to it as she had done nothing wrong. Dr Byth diagnosed Adjustment Disorder with anxiety and depressed mood (Reactive Anxiety and Depression).[121] In 2009 she had difficulty coping with the allegations; she was upset that she and her colleagues were redeployed and she was relieved when the allegations were found to be unsubstantiated.[122] She then struggled to return to work and gradually developed a psychological reaction.[123] She had symptoms resembling PTSD. She had obsessive-compulsive pre-morbid personality traits.[124] She should continue with psychiatric treatment for at least three years, during which he expected partial improvement.[125] She was suffering from a permanent psychiatric impairment of 25 to 50 per cent as a result of stressful circumstances in her work in 2009 to 2010. There were no other contributing factors to this impairment.[126]
[118]Report of Dr Byth, “Re Mrs Edith Harris” (9 August 2011).
[119]Above [2.4]-[2.5].
[120]Above [3.1].
[121]Above [10.1].
[122]Above [10.2].
[123]Above [10.3].
[124]Above [10.8].
[125]Above [11.2].
[126]Above [14.1].
As noted earlier, Dr Byth was questioned by his Honour on 14 March 2014. When asked whether he thought it was a problem for Ms Harris that she continued to work with those who had complained about her and that this may have contributed to the severity of her condition, Dr Byth stated:
“I think she became very sensitised to seeing any of the stuff she felt they had complained unfairly about her. And it was making her life at work very aggravated and anxious. And it made it an unpleasant experience to be at work. ... And the situation was more or less ongoing so that she was sort of trapped there. There was no resolution for it. So I think that aspect of it added to her anxiety and depression.”[127]
[127]T5-15, l 5 – l 13, AB 355.
Dr Byth agreed that this was because the complaints took so long to be resolved without her knowing what was happening. Ms Harris knew complaints had been made but for some time she did not know they involved her and she was not given details of them. This might well have contributed to the severity of her condition. When she realised that she was included in the complaints, this confirmed in her mind that there was a conspiracy targeting all of those complained about and she found this even more threatening. It added to her feeling anxious and depressed and she became suspicious that things would worsen.[128] Before these 2008 and 2009 stressors, her mildly obsessive compulsive personality traits fell short of pre-existing Personality Disorder. Her obsessive compulsive defence mechanisms to cope with depression, by throwing herself into her work, would make it hard for her to transfer to other work. Dr Byth considered that the same stressful events as acted on Ms Palmer acted on Ms Harris, although they coped differently. Ms Palmer was more severely affected than Ms Harris who had been able to keep working, although with medication and flare-ups of anxiety and depression.[129]
[128]T5-15, l 30 – l 44, AB 355.
[129]T5-17, l 5 – l 18, AB 357.
The judge asked whether it would have made a difference to Ms Harris’ condition if she had been supported by management. Dr Byth stated that Ms Harris felt very let down; there was a vacuum of support to cover this contingency; she completely lost faith in her employment situation and her assumptions about feeling safe in a continuous work environment were shaken. Had the approach of management been different she probably would have felt more secure and “not developed so much anxiety and depression.”[130] Dr Byth considered that all the appellants clearly linked their anxiety and depression to the same series of events and saw that as “the causation” of their psychiatric injury.[131]
[130]T5-18, l 20 – l 30, AB 358.
[131]T5-19, l 15 – l 30, AB 359.
I have already dealt with some aspects of Dr Byth’s file note of 8 April 2014[132] in which he reported that the respondent’s not allowing the appellants to speak to one another; and the fact that no-one from the respondent had met with the appellants (inferentially to support them through the investigation process) were contributing factors to each appellant’s psychiatric injury. Specifically in relation to Ms Harris Dr Byth noted that although she was not at the picketing she was told about it; not knowing what was happening there would have made her anxious even though she was told not to worry.[133] She apprehended that Ms Steele-Wareham had lied to her and this absolutely devastated her. Ms Harris used her work as a structure mechanism to hide her emotions and, instead of dealing with her depression, was soldiering on, using work as a crutch. A new job would be difficult for her as she lacked flexibility.[134]
[132]Exhibit 42, discussed at [26] of these reasons.
[133]Exhibit 42 [9], AB 2786.
[134]Above [21], AB 2787.
When cross-examined by the respondent’s counsel on 9 April 2014, Dr Byth agreed that when Ms Harris returned from holidays at the beginning of 2009 “she was very upset, crying the whole time”. She wondered whether she still had a job because staff had been moved to other positions and some had taken sick leave. She did not then know she was the subject of complaint. Even before she returned to work, she was upset, worried and anxious. This could well have been the start of her anxiety and depression.[135] She was devastated to learn of the complaints and that she was being investigated.[136] I have already set out in Ms Hayes’ case Dr Byth’s evidence relevant to causation in respect of all appellants at [26], [28], [29] and [31].
[135]T10-13 – T10-14, AB 775 – 776.
[136]T10-14, l 17, AB776.
The respondent’s counsel did not suggest to Dr Byth either that Ms Harris would have suffered psychiatric injury irrespective of any failure of the respondent to provide her with reasonable support after the 2009 complaints, or that a pre-existing condition caused the injury. Nor did counsel invite him to apportion the degree of responsibility for her injury according to any individual cause or causes. And unlike in Ms Greenhalgh’s case, there was no evidence of any subsequent exacerbating cause of her injury.
Finding on causation (Ms Harris)
When this evidence specifically about Ms Harris is considered together with aspects of Dr Byth’s evidence discussed in Ms Hayes’ case relevant to all appellants, for the reasons given at [35] and [36], I am satisfied that the respondent’s lack of support for Ms Palmer after January 2009, although not the stand alone cause, was probably a real, material and not negligible cause of her psychiatric injury. The respondent’s breach of duty was therefore a legal cause of her injury.
Damages (Ms Harris)

I cannot see that there is any factual circumstance which meant that the respondent owed Ms Harris a duty before the 2009 complaints were made. When the 2009 complaints were made the respondent knew, or ought to have known, that complaints were made against Ms Harris. The respondent ought to have turned its mind to Ms Harris’ substantive position. On the basis of the evidence in the other three cases, it seems to me that the respondent ought to have removed Ms Harris from her substantive position from January 2009. This was not explored at trial, but in circumstances where managers, such as Ms Hayes, Ms Greenhalgh and Ms Palmer, were to be removed from their positions, there was a very strong case that Ms Harris also ought to have been removed from her position. As noted, Ms Wareham justified the removal of other managers on safety grounds. Safety concerns were more significant in Ms Harris’ case for she worked directly with the RCOs who had made complaints against her, whereas the other three ladies either worked indirectly with RCOs or spent much less of their time directly working with RCOs than Ms Harris did. On all the evidence, I accept that it was sensible to be concerned about the physical safety of the managers were they still to work with the RCOs. It was also the case, in my view, that leaving managers to work with antagonistic RCOs was foreseeably dangerous to their psychiatric health.
As I have already outlined in Ms Hayes’ case, the respondent ought to have appreciated from the beginning of January that the 2009 complaints were of such a magnitude that several months would pass before any investigation could be finalised, and should have understood that the complaints would be prosecuted very aggressively by the Union. The Department knew that the complaints were similar to that made in 2008 in that Ms Johnson was involved as a moving force and that the nature of the complaints – bullying and harassment – were similar. It knew how upset Ms Hayes and Ms Greenhalgh had been in 2008 when dealing with Ms Johnson’s complaints against them, even though Ms Harris herself had had little contentious history with Ms Johnson. The Department knew that Ms Harris sat near to Ms Johnson in the office and worked every day with the RCOs who were prosecuting their complaints, to use Ms Harris’ term, with “ferocity”. I think in these circumstances, it was reasonably foreseeable to an employer in the position of the respondent that, if it did not support Ms Harris in the workplace, she might suffer psychiatric harm.
Breach
The issue of breach was in contention on the appeal – see Ground 2 of the notice of contention.
The statement of claim in Ms Harris’ case asserts that injury arose on 18 January 2009, notwithstanding that Ms Harris was on holiday at that time and that the matters pleaded as breach by and large post-date 18 January 2009. Having regard to the way the case was run below, it appears that Ms Harris’ case really was that she suffered injury in or about June 2009 when she left work on WorkCover. I think it is fair to regard that case as having been accepted by the conduct of the respondent during the trial. On the other hand, in evidence Ms Harris made complaint about incidents between November 2009 and November 2010 – AB 332. These incidents were so far removed from those in the pleading, both in terms of time and substance, that I do not think it is appropriate to regard them as part of the claim made, notwithstanding that no objection was taken to this evidence being led. No objection being taken is consistent with counsel for the defendant regarding the matters as going to quantum only.
The trial judge made an obiter finding of breach of duty. However, for the reasons explained in Hayes, above [174], that finding is not sustainable.
I think that the respondent breached its duty to Ms Harris. The respondent took no steps to identify that she was the subject of complaints by the RCOs, notwithstanding she brought her fears to Ms Wareham’s attention on numerous occasions. The decision not to tell Ms Harris that a complaint had been made against her was not something that was done deliberately as a strategic part of the investigation, or for some other reason. It was simply carelessness on the part of the respondent. For all the time she was under investigation it left her in the difficult position of having to work directly every day with the RCOs. She was so stressed that she had to take a week off work because Ms Wareham would not take her numerous requests about being the subject of complaint seriously. Once Ms Wareham did discover that Ms Harris was the subject of complaints she did not remove her from her position so that she could be protected from working with the RCOs every day. Nor was any other support offered to her, except the written information about the Department’s own counselling service.
As with Ms Palmer, what took place in the office was in some ways the opposite of supportive. Ms Wareham made comments which were reported to Ms Harris which indicated she had pre-judged her as being blameworthy, and her change in demeanour to Ms Harris in the office from April 2009 reflected that same attitude. Despite Ms Harris obviously being upset and having great difficulty with Ms Johnson in the workplace, no attempts were made to address this situation by moving either Ms Harris or Ms Johnson or somehow insulating Ms Harris from Ms Johnson’s conduct in the workplace.
Causation
As explained causation was in issue on the appeal. In relation to this the trial judge said, “Again for practical purposes the evidence of causation depends on the evidence of Dr Byth. I accept his evidence, and accept that the matters referred to by him caused Ms Harris’ psychiatric condition” – [150]. He went on to say:
“The effect of his evidence is that there were a number of matters referred to in paragraph 5 which together, and together with some other things, caused the injury: the allegations by the various people against Ms Harris (w-y), the fact that Ms Steele-Wareham had initially told Ms Harris that there were no complaints against her, which was not true (q-s), and the effects of the picket (cc). Again the effect of Dr Byth’s evidence was that it was the combined effect of all the matters which resulted in her developing the psychiatric condition she came to develop so that each of them was a cause of that condition; the analysis is the same as with Ms Palmer.” – [150] of the judgment below.
Dr Byth’s main report was dated 9 April 2011. The substance of the report is introduced by the sentence, “Edith Harris complained of adverse effects from stress in her work as team leader in 2009-2010.” Immediately one is alert to the fact that Dr Byth was basing his report on a wider factual basis than could be proved as breaches of the respondent’s duty.
To Dr Byth Ms Harris complained of matters relating to Ms Johnson from the end of 2008 – she was “having difficulty coping with Julie”. She was also having trouble with another employee – FB. There was no evidence given as to this and it did not form part of Ms Harris’ claim against the respondent. It is clear that this other employee did significantly affect Ms Harris: he made a statement against her as part of the 2009 complaints. She reported to Dr Byth that she was thinking a lot about both Ms Johnson and FB: “all the time” – paragraph 3.5 of his report, and see AB 776: Ms Harris would wake up thinking of Ms Johnson and FB. By the time Ms Harris saw Dr Byth she reported ongoing difficulties because FB was still working in the same building as her and was intimidating towards her and trying to scare her to the point where she had been told (presumably by the respondent) that she did not have to work in the same building as FB.
Further it is clear, as it was clear in her evidence, that one of the most significant things to Ms Harris was the devastation she felt in April 2009 when she was told of the details of the complaints against her, including the complaint of racial discrimination (for understandable reasons). These complaints on Ms Harris’ part were outside the scope of the case run against the respondent. Further, cross-examination on Day 10 of the trial by counsel for the respondent elicited that a very upsetting thing for Ms Harris was being investigated at all and being questioned at the investigation. She said she was “always going to be angry” about that and was not able to forgive the complainants for making a complaint against her – AB 777. This accords with Ms Harris’ evidence‑in‑chief that it was the fact of the investigation and its conduct which upset her very much – AB 220, AB 223 and AB 226.
On Day 5 of the trial, the trial judge elicited from Dr Byth that the perceived lack of natural justice in the investigation – long delay before the details of the complaints were given – contributed to the severity of Ms Harris’ condition and Dr Byth gave considerable evidence about how the fact that the complaints were made, their concerted nature and the seeming conspiracy of RCOs to make complaints was something which Ms Harris found sinister and threatening and caused her to feel anxious, depressed and suspicious – AB 355.
Dr Byth thought it was very difficult for Ms Harris to keep working with the RCOs after she found out, in April 2009, what complaints they had made against her, especially in circumstances where there was no communication to her as to how long that situation would endure – AB 355.
The trial judge asked whether or not support in the workplace would have made a difference to Ms Harris. The question was a very general one, for support was nowhere defined, and there was no timeframe specified. Dr Byth’s answer was that had the approach of the respondent been different (he does not say how) Ms Harris “probably would have felt more secure and not – not developed so much anxiety and depression” – AB 358. This is a long way short of an opinion that the lack of support proved to be in breach of duty, caused or significantly contributed to the illness which Ms Harris suffered.
As to causation Dr Byth said in his report:
“Following a series of stressful events in her work in 2009-2010, Edith Harris has been suffering from adjustment disorder with anxiety and depressed mood.
This psychiatric condition was caused by her difficulty coping with allegations of harassment, falsifying documents and racial discrimination at work, and with a difficulty coping with a subsequent investigation. She thought that the allegations were very unfair and she felt hurt that they were made by some of her previous friends at work. She then felt very anxious about returning to work, and about being upset by working alongside staff who had complained against her. She was also sensitive to the reminders of being under investigation, and she had difficulty sitting through meetings at work.”
There was no attempt during evidence at the trial to address with Dr Byth whether or not the matters which were proved as breaches, and which were justiciable between these parties, were sufficient to have caused, or have significantly contributed to, Ms Harris’ psychiatric condition. There must be real questions as to this, having regard to: (1) her history to Dr Byth about FB, and (2) the emphasis to Dr Byth, and also in her evidence, that the matters which upset her most of all were matters which were not justiciable – the making of the complaints and the subsequent investigation. Dr Byth’s evidence as to the effect of more support (whatever he understood by that) in the workplace does not inspire confidence that, had support been provided to Ms Harris in the workplace, she would not have suffered the injury she suffered. I cannot see that Ms Harris proved that the respondent’s breaches of duty caused her illness.
GREENHALGH
In 1994 Ms Greenhalgh began work in the Department as an RCO – AB 135. Over the years, she worked as a Resource Officer, an Acting Unit Manager, an Acting Service Manager (in 2008) and finally, in 2009 and currently, as a Specialist Response Officer – AB 135.
2008 Complaint
In the middle of 2008 Ms Greenhalgh was aware of the issues between Ms Johnson and Ms Hayes – AB 136‑137. Ms Greenhalgh had been told of Ms Simpson’s telling Ms Hayes that the 2008 complaint was upheld, and knew how upset Ms Hayes was that day. In September 2008 Mr Costello asked Ms Greenhalgh to be the line manager for Ms Johnson (replacing Ms Hayes). Ms Greenhalgh told Mr Costello that she was concerned because she felt that Ms Johnson was unpleasant and difficult to work with, and she was worried that Ms Johnson might make allegations against her – AB 138‑139. They decided that Ms Greenhalgh, Mr Costello and Ms Johnson would have weekly meetings to discuss work-related issues and manage Ms Johnson – AB 138. Ms Greenhalgh asked Mr Costello to be present at these meetings because she was concerned that Ms Johnson might make false allegations against her.
At the first of these meetings, after Mr Costello left, Ms Johnson put her hand on Ms Greenhalgh’s shoulder and said, “don’t worry Pam, I’m not after you” – AB 139. Ms Greenhalgh was alarmed by these comments – AB 202-203. Having regard to the dispute between Ms Johnson and Ms Hayes, she thought Ms Johnson was a dangerous person. Ms Greenhalgh reported the incident to Mr Costello that afternoon. There is no evidence to suggest that Mr Costello did anything specific in response to her complaint; the weekly reviews of Ms Johnson continued as planned. Ms Greenhalgh also spoke to the Workplace Health and Safety officer (Ms Cuskelly) about the incident, and had a telephone conversation with the confidential Departmental counselling service. On 8 October 2008, around two weeks after the incident, she saw a counsellor from that service – AB 140 and AB 206. There was no evidence that the respondent knew about this contact with the counselling service.
In September or October 2008, Ms Johnson made a complaint against Ms Greenhalgh to the AWU. Ms Johnson was pregnant and there were potentially issues involving her safety, and the safety of other RCOs, because of the behaviour of some of the residents. Ms Johnson had kept the pregnancy secret, at least from management. Ms Greenhalgh quite properly reported the RCOs’ concerns about the safety of having a pregnant woman in their workplace. Ms Johnson complained about this. This allegation was not pleaded to be a breach of duty, and I cannot see how it could have been. Nonetheless, objection was taken to the evidence if it amounted to anything more than background – AB 142.
Ms Greenhalgh attended her general practitioner on 18 September 2008 regarding stress at work. She had a history of stress and anxiety prior to this – AB 205-206. There is no evidence that either of these things were known to her employer. She spoke to a counsellor from the Departmental service on 22 September 2008. Again there is no evidence her employer knew this.
2009 Complaints
Ms Greenhalgh was at the meeting which Ms Hayes put at 5 January 2009. Ms Greenhalgh was told there were allegations of workplace harassment, bullying, racial vilification and maladministration. She was told the AWU was involved. Ms Greenhalgh was not told who had made the complaints – AB 145. Ms Wareham told those present at the meeting that they were not allowed to talk to each other about the dispute. She received the email from Ms Wareham to the same effect – AB 211.
After the meeting, Ms Greenhalgh had a conversation with Mr Costello about her continuing as an Acting Service Manager – AB 146. She did not express any reservations about remaining in that position, and it was her understanding that Mr Costello conveyed those comments to Ms Wareham – AB 146. Later that day Ms Greenhalgh confirmed what she said in an email to Mr Costello – AB 1026.
Ms Greenhalgh was due to commence a new position on 2 February 2009. However, on 15 January 2009, a manager rang her to say that she was to commence her position two weeks early, on 19 January 2009 – AB 174. She asked why she was being moved earlier, and it became apparent that the move was related to the dispute with the RCOs – AB 148. She interpreted this as a victory to the RCOs and she received some confirmation of this from the manager when she voiced this view – AB 148.
Another complaint was made against Ms Greenhalgh when she was filling in for some RCOs on 14 January 2009, so as to allow those officers to attend the Industrial Relations Commission –AB 156-157. It was alleged that she had written down the names of the officers who had attended the meeting, with a view to making deductions from their pay – AB 156-157. A manager spoke to Ms Greenhalgh about the incident, but he did not disclose who had made the complaint. She was not aware whether any further action was taken – AB 157. Again, this matter was not pleaded and objection was raised to it insofar as it was anything more than background.
Picket
Ms Greenhalgh was in the Maryborough office during the picket. She said picketing took place over three days – 19, 20 and 21 January 2009 – AB 149. She reported feeling “harassed, intimidated and bullied” – AB 150. The picketers slammed their placards on the windows. One of the picketers entered the foyer of the building. Ms Greenhalgh did not see this, but was told by someone else that it had occurred – AB 150. She was working in the back area of the building at the time of the protests. Access to this area was restricted by a swipe card. The RCOs did not have swipe card access to the building – AB 150. On at least one occasion, the protestors yelled at Ms Greenhalgh while she was walking across the street near the Maryborough office – AB 151.
Ms Wareham sent an email to a number of staff members, including Ms Greenhalgh, to warn them of the protests. The email was sent on the morning of 20 January 2009 ie, after the first day of protests. Ms Greenhalgh did not receive a copy of the email of 19 January 2009, as Ms Palmer did, and was not warned prior to 19 January, as Ms Cuskelly was. No arrangements were made for her to stay away from the office during the picket.
On 20 January 2009, Ms Greenhalgh submitted a WIRF saying that she was “suffering headaches from stress, feeling harassed, intimidated and bullied by members regarding the industrial issues and allegations made”. Another WIRF was sent the next day in similar terms as the first one: “headache due to stress, arrived to work at 10.00 am due to fear of industrial issues, and lack of support.” Ms Greenhalgh sent the WIRFs to Ms Wareham – AB 151.
Around 21 January 2009, Ms Greenhalgh had a meeting with Ms Wareham in her office. Ms Greenhalgh thought the purpose of the meeting was to discuss the WIRF which she had submitted earlier that day. Instead Ms Wareham questioned Ms Greenhalgh about the industrial dispute. According to Ms Greenhalgh, Ms Wareham said: “60-odd RCOs couldn’t be wrong” – AB 154. This was denied by Ms Wareham. The trial judge found that the statement was made – [204] of the judgment below. Ms Greenhalgh felt that Ms Wareham had prematurely formed a view about the dispute by concluding that Ms Greenhalgh, along with the other managers against whom allegations were made, were guilty of the alleged misconduct. The trial judge also found that on two occasions Ms Wareham told Ms Greenhalgh to “suck it up” when she complained – [211] of the judgment below.
At the meeting Ms Wareham also questioned Ms Greenhalgh about a comment she made at a team planning day. Ms Greenhalgh recounted what she said at the time – AB 153. She was told that another employee complained that the comments constituted racial vilification. Ms Greenhalgh was not informed who made the allegations against her, and why her comments might be considered to be inappropriate. There was no evidence at the trial that Ms Greenhalgh had said anything improper. In fact, counsel cross-examining Ms Greenhalgh on this topic made it clear he did not suggest she had done anything wrong – AB 216. Even though the allegations had not been proved, Ms Greenhalgh was told to attend cultural awareness training and she was directed not to contact clients – AB 153. Ms Greenhalgh thought this very unfair – AB 153. Indeed, it seems to have been. Ms Wareham admitted that she did not tell Ms Greenhalgh anything along the lines that she was “presumed innocent” until the investigation was complete, or in any way try to explain or justify why Ms Greenhalgh was being sent to training before investigation into the allegation – AB 707-708. Indeed, Ms Wareham did not seem concerned to think about the effect of her direction at all – she said she was told by the Director-General to have Ms Greenhalgh engage in the training and she did so. Ms Wareham understood that Ms Greenhalgh’s undergoing this training was part of an agreement the Director-General made with the AWU – AB 708.[170] There was no evidence Ms Greenhalgh knew anything about that.
[170]It might be fairer to regard her word “agreement” as meaning “arrangement” in light of subsequent debate about it.

During the course of the meeting, Ms Wareham did not speak to Ms Greenhalgh about the picketing – AB 154 and AB 158. Ms Greenhalgh never received any response to her WIRFs – AB 154. Ms Greenhalgh said she felt “no support” from the management team in the building at the time – AB 151. She thought that Ms Wareham had pre-judged matters and offered her no help – AB 154 and AB 188.
On 9 March 2009 Ms Wareham sent an email to Ms Greenhalgh telling her that an independent investigation would take place – AB 183. Ms Greenhalgh was away on training and did not get the email for a week. She was “quite upset” that Ms Wareham had not rung her up to tell her about the investigation – AB 183.
In April 2009 Ms Greenhalgh had a meeting with a manager who supervised her new position. He informed her that on the Director-General’s instructions, she was not to have any contact with anyone within her old workplace team; ie, not RCOs and not managers. It seems her evidence was that she was told she was meant to have ceased contact with these people earlier, and there was an issue raised by her manager as to why she was still contacting them. She had been unaware of any earlier directive. She was “very distraught”, and left the meeting soon after – AB 187. She felt, correctly,[171] that she could not perform some of the requirements of her new role without contacting some staff from her old section. Ms Greenhalgh was so upset she went home from work. She received an apology from the relevant manager.
[171]AB 710.
On one other day Ms Greenhalgh had to leave work because she was so upset about what she saw as Ms Wareham’s failure to accord her a hearing on the allegations made by the RCOs – AB 188. Indeed, it is clear that one thing which very much upset and distressed Ms Greenhalgh was that she felt she had been denied natural justice by Ms Wareham. She felt that if she had been allowed to give a version of events at the time the allegations were first made, much of the subsequent investigation would have been unnecessary – AB 224. That is, some significant amount of her distress was caused by the way the Department chose to investigate the 2009 complaints, and was not justiciable.
Duty
The trial judge found that Paige applied to prevent a duty arising in this case – [203] of the judgment below – but then continued to say, in relation to three specific allegations of breach, that he did not think that, even though those breaches had occurred, they cast a duty upon the defendant. Further, at [205]-[215] of the judgment below the trial judge examined matters which were particularised as breaches in further and better particulars of the statement of claim. He said that even though he found the conduct occurred, he did not think it was reasonably foreseeable on the part of the respondent that Ms Greenhalgh would suffer psychiatric injury. As explained, I think that the pleading of these various matters was to be interpreted as a pleading of breach rather than matters which went to duty. The appellants in this Court relied upon these statements by the trial judge as being incorrect factual determinations as to duty – see, for example, paragraphs 24 and 30 of the amended outline of argument. As I hope will be clear, these arguments cannot succeed: the matters were not pleaded as going to duty, but as particulars of breach.
The notice of appeal contained a paragraph in the same terms as that set out at [167]. The notice of contention was to the effect that no duty to take reasonable care to avoid psychiatric harm arose because that risk was not foreseeable. That is, the existence of a duty was in issue on appeal.
It was pleaded that Ms Greenhalgh suffered injury in May 2010. It is not apparent from the pleading why that date was chosen. Nor is it apparent to me from the evidence. I think the pleaded date must be an error. The breaches pleaded are in January 2009. Ms Greenhalgh’s being sent to her new position early (January), and her being restricted in her contact with administrative staff from her old section (April) are not mentioned in the statement of claim or particulars, but I think that from the conduct of the case it is appropriate to regard this evidence as part of the appellant’s case on breach. It is impossible to be more precise about when the injury is alleged to have occurred, or when the duty is alleged to have arisen.
I cannot see that anything which occurred before early January 2009 could support a duty of care arising to prevent psychiatric harm. Ms Greenhalgh had an unhappy working relationship with Ms Johnson and certainly by September or October of 2008 the Department was aware that Ms Johnson had created significant problems for Ms Hayes, although it did not know and in my view could not reasonably foresee that this amounted to anything more than stress on the part of Ms Hayes. The Department did not know of Ms Greenhalgh’s prior medical history regarding stress and anxiety or that Ms Greenhalgh had consulted her general practitioner and the confidential counselling service.
At the beginning of January 2009 the respondent knew that Ms Greenhalgh was one of the managers about whom a very large number of complaints had been made and that the complaints were being vigorously and publicly pursued with Union support. It had decided that there would be an investigation into the complaints and must have anticipated that matters would not be resolved for some significant time. Ms Greenhalgh was almost due to be moved to a position which she had sought and obtained. To move her to it early was a much less disruptive solution than would be necessary for Ms Palmer and Ms Hayes. Her new job had the advantage (so far as the dispute and investigation were concerned) that she did not need to deal with the RCOs – AB 225. The respondent could have foreseen stress to Ms Greenhalgh if she had to endure the pickets. It knew from the WIRFs that Ms Greenhalgh was in fact stressed by them. It was foreseeable that if Ms Greenhalgh was restricted in her new role that would be frustrating and stressful. The respondent knew that Ms Greenhalgh took two days off work because of stress.
It is difficult to see that in all the circumstances it was reasonably foreseeable that Ms Greenhalgh would suffer psychiatric illness, rather than just unhappiness, a sense of injustice and stress in the workplace if support were not provided to her. My view is that no such duty arose and her appeal must be dismissed. I think the significant distinction between her case and the cases of Ms Hayes and Ms Palmer is that she did not lose her substantive position while the investigation was carried out. In fact she was moved to a new role which she had sought and was thus somewhat insulated from the workplace conflict. In that respect her case also contrasts with that of Ms Harris who, because she was not moved, spent a considerable time working in stressful circumstances with those who had lodged serious complaints against her.
CLAIMS IN CONTRACT
It is necessary to deal with one further discrete point raised on appeal. The statements of claim each pleaded that:
“At all material times it was an implied term of the contract of employment between the plaintiff and the defendant, and/or the defendant owed the plaintiff a duty to:
(a)provide and maintain a safe workplace;
(b)take all reasonable precautions for the safety of the plaintiff whilst she was engaged in employment;
(c)not expose the plaintiff to any risk of damage or injury of which it knew or ought to have known;
(d)take all reasonable precautions to ensure the plaintiff was not subjected to abuse within the workplace.”
Part of the “Particulars of Negligence and Breach of Contract” in each case included paragraphs to the effect that the respondent:
“11.Failed to comply with the Risk Management Code of Practice 2007;
12.Failed to comply with the Prevention of Workplace Harassment code of Practice 2004;
13.Failed to comply with DSQ’s policies and procedures, in particular their policy regarding zero tolerance for workplace bullying and harassment;
…”
There was no pleading that these codes and the policy formed part of the contract of employment between the appellants and the respondent. The pleading was that the contract contained an implied term to take reasonable precautions for the employees’ safety. It was in identical terms to the tortious duty. No other contractual terms were identified. It is apparent from the defences that the statements of claim were not interpreted in this way. Particulars were given of these allegations in a separate document in each case, and there was no indication that they were relied upon as terms of the employment contracts. Evidence about the codes was relatively contentious – see AB 57 ff – but in argument it was never suggested that the various codes were terms of the employment contracts. Trial counsel for the appellants seemed to rely upon the codes as relevant to breach – that is a measure of reasonable conduct – AB 69 ff, AB 168 and AB 179 ff.
During argument about the codes the trial judge suggested that the Public Sector Ethics Act 1994 (Qld) might explain the nature and purpose of them. That Act provides that various codes and standards which have been officially approved must be complied with by public service employees. It provides for disciplinary sanctions for behaviour in breach of the codes. There is no authority directly on the Public Sector Ethics Act of which I am aware, or to which the appellants referred the Court. Generally, however, questions of whether or not civil causes of action arise as a result of statutory specifications are well known.[172] It was not pleaded that there was any statutory cause of action arising in the present case. Nor was it pleaded that the statute was the basis of any term – express or implied – in the employment contract.
[172]O’Brien v TF Woollam & Son Pty Ltd [2001] QSC 217 [7] ff and the authorities cited there.
Without arguing the point in any detailed way at all, the appellants contended at paragraph 20 of the amended outline of argument in this Court, that the documents formed part of the contract of employment by virtue of the Public Sector Ethics Act.I do not consider that argument open on appeal when it was never raised either on the pleadings. It was raised in addresses and objection was taken that it was not pleaded.[173] The foundation for such an argument, that the codes were approved under the Act, was not laid at trial. There was no attempt to prove what the terms of the contracts of employment were. I do not see that this point is raised in the notices of appeal. There is authority in Western Australia close to the point which is against the argument the appellants wish to make.[174]
[173]Page 24 ll 40-45 of the transcript of 14 August 2014.
[174]Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244 [145].
Disposition
In my view, all four appeals must be dismissed. It seems that the appellants ought pay the respondent’s costs.

CITATION:	Hayes & Ors v State of Queensland [2016] QCA 191
PARTIES:	SAMANTHA KATHERINE HAYES (first appellant) PAMELA GREENHALGH (second appellant) TANYA PALMER (third appellant) EDITH MATILDA HARRIS (fourth appellant) v STATE OF QUEENSLAND (respondent)
FILE NO/S:	Appeal No 4063 of 2015 Appeal No 4064 of 2015 Appeal No 4065 of 2015 Appeal No 4066 of 2015 DC No 3251 of 2012 DC No 3317 of 2012 DC No 3224 of 2012 DC No 3226 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals
ORIGINATING COURT:	District Court at Brisbane – [2015] QDC 63
DELIVERED ON:	29 July 2016
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2015
JUDGES:	Margaret McMurdo P and Mullins and Dalton JJ Separate reasons for judgment of each member of the Court, Mullins and Dalton JJ concurring as to the orders made, Margaret McMurdo P dissenting
ORDER:	In Appeals No 4063, 4064, 4065 and 4066 of 2015: Appeal dismissed with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the appellants each worked as managers in a government department – where a large number of workers, together with their union, made complaints against the appellants – where the complaints were investigated by the department and later rejected – where the appellants allege there was a lack of support in the workplace after the complaints were made – where the appellants each suffered psychiatric injury – where the trial judge concluded that no duty of care was owed to the appellants because the basis for their complaints was an investigation by their employer – whether the trial judge erred in concluding that no duty of care arose in the circumstances TORTS – NEGLIGENCE – BREACH OF DUTY OF CARE – where the appellants each worked as managers in a government department – where a large number of workers, together with their union, made complaints against the appellants – where the complaints were investigated by the department and later rejected – where the appellants allege there was a lack of support in the workplace after the complaints were made – where the appellants each suffered psychiatric injury – whether the respondent breached its duty of care in respect of each appellant TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – where the appellants each suffered psychiatric injury – where the facts assumed as the basis for the psychiatrist’s expert evidence were substantially different from the facts proved at trial – whether the breach of duty caused the psychiatric injury suffered by each appellant Public Sector Ethics Act 1994 (Qld) Barber v Somerset County Council [2004] 1 WLR 1089; [2004] UKHL 13, considered Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244, cited Gogay v Hertfordshire County Council [2000] Fam Law 883; [2000] EWCA Civ 228, considered Goldman Sachs JBWere Services Pty Ltd v Nikolich(2007) 163 FCR 62; [2007] FCAFC 120, applied Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206, cited Johnson v Unisys Ltd [2003] 1 AC 518; [2001] UKHL 13, cited Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, considered Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited O’Brien v TF Woollam & Son Pty Ltd [2002] 1 Qd R 622; [2001] QSC 217, cited O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7, cited State of New South Wales v Mannall [2005] NSWCA 367, considered State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235, distinguished Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, considered Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607; [2000] UKHL 50, considered
COUNSEL:	W Sofronoff QC, with S D Anderson, for the appellants D A Savage QC, with R Morton and N Jarro, for the respondent
SOLICITORS:	Shine Lawyers for the appellants GR Cooper, Crown Solicitor for the respondent