Kemp v Gold Coast Hospital and Health Service - [2024] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

Kemp v Gold Coast Hospital and Health Service [2024] QSC 259

PARTIES:

JAMIE ANDREW KEMP

(plaintiff)

v
GOLD COAST HOSPITAL AND HEALTH SERVICE (ABN 82 616 992 416)

(defendant)

FILE NO:

BS 8955 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12, 13, 14, 17, 18, April 2023 and 25 May 2023

JUDGE:

Sullivan J

ORDER:

1. The plaintiff’s claim is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – where the plaintiff seeks damages for breach of duty of care by the defendant in contract and in tort– where the plaintiff was an employee of the Gold Coast University Hospital – where the defendant operated the Gold Coast University Hospital – where the plaintiff lodged a complaint with the Office of the Health Ombudsman against other persons employed by the defendant – where the complaint was referred back to the defendant for investigation – where the Office of the Health Ombudsman erroneously disclosed the identity of the plaintiff as the complainant to the defendant – where the plaintiff alleges his identity as the complainant became known within his department – where the plaintiff alleges he suffered a psychiatric injury as a result – whether the defendant owed the plaintiff a relevant duty of care

TORTS – NEGLIGENCE – STANDARD OF CARE – SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – whether any duty of care included a duty not to cause, permit, or allow, the identity of the plaintiff as the complainant to become common knowledge – whether any duty of care included a duty to take reasonable steps to preclude members of staff from forming suspicions as to the identity of the complainant – whether any duty of care included an obligation to ensure that members of staff do not take offence from their being having been the subject of the complaint – whether any duty of care included an obligation to quell gossip and rumours concerning the identity of the complainant – whether any duty of care included an obligation to implement procedures to ensure the confidentiality and protection of complainants – whether any duty of care included an obligation to ensure that members of staff do not engage in certain conduct

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – whether it was reasonably foreseeable that the plaintiff would suffer a psychiatric injury – whether the psychiatric injury sustained by the plaintiff was caused by a breach of duty of care by the defendant

Health Ombudsman Act 2013 (Qld), s 92

Workers’ Compensation and Rehabilitation Act 2003 (Qld),
s 305B, s 305C, s 305D, s 305E, s 306

Workers’ Compensation and Rehabilitation Regulations 2014 (Qld)

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bersee v State of Victoria [2022] VSCA 231
Eaton v Tricare (Country) Pty Ltd [2016] QCA 139
Fox v Wood (1981) 148 CLR 438
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hatton v Sutherland [2002] 2 All ER 1
Hayes & Ors v State of Queensland [2016] QCA 191
Jones v Dunkel (1959) 101 CLR 298
Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304
Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44
New South Wales v Fahy (2007) 232 CLR 486
Queensland Corrective Services Commission v Gallagher [1998] QCA 426
Roads and Traffic Authority NSW v Dederer [2007] HCA 42
Robertson v State of Queensland [2021] QCA 92
Sheather v Country Energy [2007] NSWCA 179
Stevens v DP World Melbourne Ltd [2022] VSCA 285
Sydney Water Corporation v Turano (2009) 239 CLR 51
Tame v New South Wales (2002) 211 CLR 317
Walker v Greenmountain Food Processing Ltd [2020] QSC 329
Wolters v The University of the Sunshine Coast [2012] QSC 298

COUNSEL:

R D Green for the plaintiff
A S Mellick for the defendant

SOLICITORS:

Smith’s Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendant

Introduction

The defendant operates a public hospital known as the Gold Coast University Hospital (“the Hospital”). The plaintiff was employed at the Hospital by the defendant as a radiographer and sonographer. The plaintiff’s claim in this proceeding was for $1,305,481, but reduced to $1,275,230.74 as a result of agreement on special damages. The causes of action in this proceeding are primarily for negligent breach of the defendant’s tortious and contractual duties of care, which are said to have resulted in personal injury to the plaintiff in the form of a psychiatric injury.
The duties of care were subject to the operation of ss 305B to 305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the WCR Act”).
The events which were said to have caused that psychiatric injury to the plaintiff can be broadly summarised as follows:
(a)alleged inappropriate conduct of a Ms Jennifer Dolkens, who was the acting service director of diagnostic services, said to have occurred at a specific meeting on 22 May 2018 which concerned a complaint that had been made by the plaintiff to the Office of the Health Ombudsman (“OHO”);
(b)other more general alleged inappropriate conduct of Ms Dolkens between April 2018 and August 2018 directed to the plaintiff;
(c)alleged inappropriate conduct of a Mr Benjamin Adams, a medical imaging assistant (“MIA”), shortly after 11 April 2018, where there was said to have been a specific confrontation between Mr Adams and the plaintiff arising from the plaintiff having made the complaint to the OHO;
(d)other more general alleged inappropriate conduct of Mr Adams between April 2018 and August 2018 directed to the plaintiff;
(e)other more general alleged inappropriate conduct by an MIA, a Ms Hayley Morgan, between April 2018 and August 2018 directed to the plaintiff;
(f)other more general alleged inappropriate conduct of an MIA, a Ms Amanda Sutherland, between April 2018 and August 2018 directed to the plaintiff; and
(g)other more general alleged inappropriate conduct of a Ms Rebecca Green, who was the plaintiff’s line manager, between April 2018 and August 2018 directed to the plaintiff.
The plaintiff also alleges that the defendant was vicariously liable for the alleged conduct of each of its employees referred to above.
It is important to note from the outset that it was not part of the plaintiff’s case that the defendant knew or ought to have known, at any relevant time, that the plaintiff had a susceptibility to psychiatric injury or was exhibiting a particular vulnerability to psychiatric injury.
At the start of this trial, and at its conclusion, both parties made plain that the evidence being given by the plaintiff on the one part, and by the defendant’s witnesses on the other part, as they concerned the events underlying the alleged breaches of the duties of care, were mutually inconsistent.
As with all fact-finding tasks in a trial, it is rarely as black and white as the parties effectively expressed it.
Nonetheless, in this case on the critical facts underlying the alleged breaches of duty, I have generally found in favour of the defendant. I have also concluded that the alleged breaches of duty in the statement of claim have not been made out and were not causative of psychiatric injury to the plaintiff. I have also concluded that the defendant was not vicariously liable, as I have separately found that the alleged inappropriate conduct did not occur. Accordingly, the claim ought to be dismissed.
In these reasons, I will:
(a)identify the relevant allegations in the pleadings;
(b)set out legal principles as they pertain to the articulation of the specific duty of care obligation;
(c)deal with background facts, and the psychological state of the plaintiff prior to the events which are pleaded;
(d)make the findings on the seven events referred to in paragraph [3];
(e)express my conclusion on the duty of care, breach of duty and causation, together with the vicarious liability claim; and
(f)make findings on the quantum.
At this early stage, I should make some initial comment on a particular submission which was urged by counsel for the plaintiff.[1] It was submitted that the manner by which the plaintiff gave his evidence and the distress it caused him to speak of certain things spoke to his sincerity regarding the predicament which he now found himself in. The submission continued that such matters touched upon notions of credibility in the sense that witnesses who exhibit such behaviours tend to be more reliable. The example given for this submission was that the plaintiff had given evidence, with tears, about the losing of his house which he and his partner had purchased as a result of their savings which they had made during their working lives. They now live in rental accommodation.
[1]Paragraph [5] of the plaintiff’s closing submissions.
I do not accept that submission, either with respect to the plaintiff or any of the other witnesses. Obviously, part of the evidentiary analysis process includes the observation of the demeanour of witnesses, but rarely are cases decided on the observable demeanour of witnesses. Generally, cases will turn upon an analysis of the substance of the totality evidence before the court, including objectively provable facts and reasonable inferences which are to be drawn on the balance of probability.
The plaintiff was emotional at various times during the giving of his evidence-in-chief and in cross-examination. This included his need to have breaks due to being distressed and his being teary. There was nothing confected about the plaintiff’s presentation in this respect. His distress was evidently genuine. He clearly was not well when giving evidence.
His giving of evidence in this way was to be expected. It is uncontentious on the medical evidence that the plaintiff has suffered and continues to suffer from a Major Depressive Disorder, in circumstances where he has not been willing to be treated with antidepressant medication. Further, the process of giving evidence in court is no doubt stressful under normal circumstances, but is all the more stressful when someone is suffering from such a disorder. However, the fact that the plaintiff was emotional at times as described does not automatically equate with him being a more reliable witness.
As was recognised by the Victorian Court of Appeal in Stevens v DP World Melbourne Ltd [2022] VSCA 285 at [44],[2] the hallmark of cases similar to the present kind is that evidence given by a party with a psychiatric injury may well be affected by their condition. Their Honours observed as follows:
“Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his employment. In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff’s evidence, might have been the product of the mental injury that arose in the course of the plaintiff’s employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff’s mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff’s evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence.” (footnotes omitted)
[2]Per Beach, Macaulay JJA and Forrest AJA.
I have found in this case that the plaintiff was affected adversely in his reliability and accuracy as a witness by his psychiatric condition. In this regard, I have accepted the evidence of Dr John Chalk and Dr Eric De Leacy on this issue.
Pleadings
I turn then to how the plaintiff advanced his claim in the pleading.
The duty of care was pleaded in paragraph [3] of the statement of claim as follows:
“At all material times the defendant owed to the plaintiff a duty of care in tort (as referenced in subparagraph (a) of the definition of duty in section 305 of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”)) and a concurrent and coextensive duty of care under contract (as referenced in subparagraph (b) of the definition of duty in section 305 of the WCRA), including by terms implied into the contract of employment between the plaintiff and the defendant (such implication arising from the relationship of employer and employee), which duties of care were to take reasonable care to avoid foreseeable risks of injury to the plaintiff and which included that the defendant would:
(a) take all reasonable precautions for the safety of the plaintiff whilst he was engaged in carrying out his work;
(b) not expose the plaintiff to a risk of damage or injury, including psychiatric injury, of which the defendant knew or ought to have known;
(c) take reasonable care to ensure that the places where the plaintiff carried out his assigned work were safe;
(d) provide and maintain a safe and proper system of work; and
(e) provide adequate training, instruction and supervision so as not to endanger the plaintiff or create a risk of damage or injury, including psychiatric injury, to the plaintiff whilst he was carrying out his work.”
Paragraphs [4] and [5] pleaded that on 12 December 2017, the plaintiff made a complaint to the OHO by telephone. It was a complaint that related to various aspects of the conduct and practices of MIAs employed by the defendant at the Hospital. MIAs were persons employed by the defendant to assist radiographers and sonographers with their day-to-day work.
Paragraph [6] then pleaded the plaintiff’s request to the OHO in relation to how the complaint to the OHO would be dealt with. It pleaded as follows:
“The plaintiff made the complaint to the OHO on his understanding, and his request, that the OHO would:
(a) raise the substance of the complaint with the defendant for investigation; and
(b) keep his involvement confidential, and not inform the defendant that the complaint came from the plaintiff.”
Relevantly, it can be seen from that part of the pleading that the plaintiff had requested that the substance of the complaint be raised with the defendant for investigation, but his identity as the complainant was not to be disclosed to the defendant.
Paragraphs [7] and [8] pleaded that, despite the request, the OHO erroneously informed the defendant that the plaintiff had made the complaint. It is uncontroversial in this proceeding that OHO did erroneously disclose that the complainant had made the complaint. It did so when it passed on the complaint to Ms Dolkens. However, no part of the OHO’s error is, or can be, advanced against the defendant.
Paragraph [8] pleaded that subsequently the fact that the plaintiff had made the complaint was alleged to have become known within the larger medical imaging department (“the Department”) at the Hospital.
Paragraph [9] pleaded that the consequence of the knowledge that the plaintiff had made the complaint was that the plaintiff “was then subjected to behaviour from staff within the Department which amounted to victimisation, retribution, bullying, harassment and abuse (“the offending behaviour”),” further details of which were then pleaded in the subsequent paragraphs of the statement of claim.
Paragraph [10] pleaded that on or about 11 April 2018, the plaintiff received an email from Ms Dolkens, advising him that she was in receipt of the complaint, and that she would be dealing with the complaint.
The pleading then turned to the events which are said to underlie the breaches of the pleaded duty. It is necessary to set them out in some detail as the breaches portion of the case will significantly turn on which, if any, of the specific events are made out by the plaintiff.
The first event is that pleaded in paragraph [11], which deals with Mr Adams’s alleged specific inappropriate interaction with the plaintiff a few days after 11 April 2018. That allegation is as follows:
“On a date within a few days after 11 April 2018, the plaintiff was confronted by a medical imaging assistant, Ben Adams, and:
(a) the plaintiff was working in the orthopaedic radiological examination rooms at the Hospital, and believes that Mr Adams came from a different part of the Hospital specifically to confront the plaintiff;
(b) Mr Adams stood close to the plaintiff and used a raised voice in a manner which was abusive, intimidating and threatening to the plaintiff; and
(c) during the confrontation Mr Adams used the following words, or words to similar effect of:
(i)“Jamie, you made a complaint about me to the Health Ombudsman”;
(ii) “You’re a fucking wanker”;
(iii)“Who the fuck do you think you are telling me how to do my job”;
(iv) “You’re trying to fuck up my job”; and
(v)“Jenny said she is going to support the MIAs anyway, so you can go fuck yourself”.”
The second event is that pleaded in paragraph [12], which deals with Ms Dolkens’s alleged specific interaction with the plaintiff on or about 22 May 2018, where the two met to discuss the OHO complaint. That allegation is as follows:
“On or about 22 May 2018, Ms Dolkens directed the plaintiff to attend a meeting with her to discuss the complaint, and in the course of that meeting, Ms Dolkens:
(a) adopted a manner towards the plaintiff which was aggressive, dismissive, argumentative, belittling and intimidating;
(b) engaged in behaviour which included raising her voice, standing close to the plaintiff and pointing her finger in the plaintiffs face;
(c) questioned the plaintiff in an accusatory manner as to why he had made the complaint;
(d) told the plaintiff that he had raised his concerns inappropriately by going to the OHO;
(e) asked the plaintiff whether he had something personal against the medical imaging assistants;
(f) in response to a query from the plaintiff, advised the plaintiff that the only persons in the Department who were aware that he had made a complaint were herself and the Medical Imaging Supervisor, Mark Bennetts; and
(g) in response to the plaintiff advising her that it was clear to him that other people in the Department were aware he had made the complaint, denied that she was the source of that information.”
The third event is that pleaded in paragraph [13], which deals with the more generalised inappropriate conduct which is alleged against Ms Dolkens between April 2018 and August 2018. That allegation is as follows:
“Further, in the period of time between April 2018 and August 2018, the plaintiff was subjected to instances of the offending behaviour by Ms Dolkens which were so regular that it is not possible for the plaintiff to particularise all of the offending behaviour, however, it included:
(a) repeated instances of her:
(i)using abusive and threatening language and demeanour towards the plaintiff;
(ii)making inappropriate comments in passing to the plaintiff; and
(iii) staring at the plaintiff;
(b) refusing the plaintiffs requests for up-skilling and promotional opportunities, including by directly asserting that she would not let him advance; and
(c) excluding the plaintiff from staff meetings and from information about changes within the Department.”

The fourth, fifth and sixth events are those pleaded in paragraph [14], which deal with general inappropriate conduct between April 2018 and August 2018, which Mr Benjamin Adams[3], Ms Hayley Morgan[4] and Ms Amanda Sutherland[5] are alleged to have engaged in. In relation to Ms Morgan and Ms Sutherland, the alleged offending behaviour is contained in sub-paragraph [14](a) and sub-paragraph [14](b) only. In relation to Mr Adams, the alleged offending behaviour is contained in sub-paragraph [14](a) through to sub-paragraph [14](c). Those allegations are as follows:
[3]The fourth event concerns Benjamin Adams.
[4]The fifth event concerns Hayley Morgan.
[5]The sixth event concerns Amanda Sutherland.
“Further, in the period of time between April 2018 and August 2018, the plaintiff was subjected to instances of the offending behaviour by medical imaging assistants employed by the Department, specifically Mr Adams and assistants named Hayley and Mandy, which were so regular that it is not possible for the plaintiff to particularise all of the offending behaviour, however, it included:
(a) ignoring, excluding and alienating the plaintiff, including by directly refusing to greet him, speak to him, or follow his directions;
(b) spreading false rumours about the plaintiff; and
(c) specifically, Mr Adams;
(i)speaking to the plaintiff in a manner which was rude and aggressive;
(ii)directly refusing to follow instructions given to him by the plaintiff;
(iii)making inappropriate comments to the plaintiff in front of patients;
(iv)obstructing the plaintiff from teaching student radiographers;
(v)apparently deliberately undertaking tasks which the plaintiff had identified in the complaint as being inappropriate for medical imaging assistants; and
(vi)refusing to cease undertaking tasks included in the complaint when asked to do so by the plaintiff and saying words to the effect of: “I have the support of Jenny so I can do what I want”.”
The seventh event is that pleaded in paragraph [15], which deals with general inappropriate conduct which is alleged against Ms Green between April 2018 and August 2018. That allegation is as follows:
“Further, in the period of time between April 2018 and August 2018, the plaintiff was subjected to instances of the offending behaviour by his line manager employed by the Department, Rebecca Green, which were so regular that it is not possible for the plaintiff to particularise all of the offending behaviour, however, it included:
(a) ignoring and isolating the plaintiff, including by refusing to greet the plaintiff while greeting others in a room;
(b) speaking to the plaintiff in a manner which was rude and abrupt and walking away from the plaintiff while he was talking to her; and
(c) rostering the plaintiff with a heavy workload.”
Paragraph [16] pleads that as a consequence of the offending behaviour in those seven event categories, all of which were said to have occurred between April 2018 and August 2018, the plaintiff sustained a psychiatric injury.
The breaches of the pleaded duty of care, both in the tortious and a contractual sense, are then pleaded in paragraph [17]. Paragraph [17] provides as follows:
“The injury was caused by the defendant’s breach of its duty of care to the plaintiff, and its breach of the contract of employment, in that it:
(a) failed to take reasonable care for the plaintiffs safety, including with respect to psychiatric injury;
(b) failed to provide a safe system of work, specifically with respect to communication between staff within the Department;
(c) failed to provide a safe place for the plaintiff to work;
(d) exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care;
(e) caused, permitted or allowed the fact of the plaintiff having made the complaint to the OHO to become common knowledge known within the department in circumstances in which it ought to have kept that information confidential;
(f) by its employees or agents, for whose actions it is vicariously liable, engaging in the offending behaviour which was foreseeably likely to cause a psychiatric reaction which might include a psychiatric injury;
(g) caused, permitted or allowed its employees to engage in the offending behaviour in circumstances where a reasonable employer would have prevented that conduct;
(h) failed to properly or adequately supervise its employees within the Department so as to prevent conduct which was reasonably likely to cause a psychiatric injury, including the offending behaviour;
(i)   failed to devise, implement and supervise a proper or adequate procedure for dealing with complaints received through the OHO so as to ensure that:
(i)the fact of a complaint having been made by an employee remained confidential to the minimum management staff necessary to investigate and report to the OHO on the complaint;
(ii)     employees acting as “whistleblowers” were protected; and
(iii)its employees did not engage in victimisation, retribution, bullying or harassment of a person who made a complaint to the OHO;
(j)   failed to properly train, instruct and/or to supervise its employees to ensure that they treated other staff in an appropriate and professional manner and which did not create a risk of psychiatric injury; and
(k) failed to take any, or any adequate or proper, steps to assess the risks of psychiatric injury to its employees.”
Sub-paragraph [17](f), in effect, pleaded a vicarious liability case.
Paragraph [18] pleaded that the injury was caused by the breaches, the breaches were a necessary condition of the occurrence of the injury, and that it was appropriate under the scope of liability to extend to the injuries because the injuries had occurred in the course of the plaintiff’s employment with the defendant as a consequence of the plaintiff performing the duties of his employment, over which the defendant had responsibility and control.
Finally, paragraphs [19] to [20] plead out the damages and loss which were said to have been suffered.
The duties and the breaches of duty were extremely broadly pleaded. No particulars had been sought of those broad allegations in order to tie to the plaintiff to a specific case. The plaintiff’s opening of his case maintained the generalised breadth of the case.
Turning then to the defence.
Paragraph [2] of the defence pleaded that a duty of care in tort, or its equivalent in contract, were only conditional upon the defendant exercising reasonable care and steps. It pleaded that any duty of care owed to the plaintiff was only in respect of foreseeable risks of injury, being a risk which the defendant either knew of or could have reasonably known of, with such response to the risk only needing to be that of a reasonable person in the position of the defendant, having regard to the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities. It was specifically pleaded that any duty did not extend to:
(a)requiring workers to greet one another;
(b)requiring workers not to gossip; and
(c)stamping out rumours.
The pleading acknowledged the role of ss 305B to 305D of the WCR Act.
In relation to the seven categories of events, the defendant’s primary position was that it denied that the inappropriate conduct alleged had occurred. Those denials were at paragraphs [4] to [10] of the defence.
In addition, the defendant pleaded that it:
(a)had a Human Resources (“HR”) department;
(b)the plaintiff made no complaint to the HR department in respect of the alleged offending behaviour;
(c)the defendant had grievance and complaint procedures in place;
(d)details of the procedures were available to all workers on the hospital intranet;
(e)the plaintiff did not avail himself with the grievance and complaint procedures;
(f)the plaintiff made no contemporaneous complaint in respect of the alleged offending behaviour; and
(g)the plaintiff was not subjected by staff to victimisation, retribution, bullying, harassment and abuse.
The defendant alleged that Ms Dolkens did not disclose the plaintiff’s identity as the complainant to the wider Department staff. It was the defendant’s case that the only other person in the Department to whom she disclosed the plaintiff’s identity as the complainant, was a Mr Mark Bennetts, who was the line manager of the radiography section of the Department.
It was admitted that on or about 22 May 2018, Ms Dolkens spoke to the plaintiff about the subject matter of the complaint, but otherwise the specific inappropriate conduct alleged against Ms Dolkens was denied. In this respect, see paragraph [7] of the defence.
The defendant separately alleged that prior to the making of the complaint to the OHO on 12 December 2017, the plaintiff had a long-standing Major Depressive Disorder, and that his ongoing mental health condition was wholly referrable to that pre-existing long-standing major depressive disorder[6]. It was alleged that the plaintiff was not treated for that major depressive disorder in 2018, and that the major depressive disorder remained untreated. It was pleaded that any perception the plaintiff had, or has, that he was subjected to the offending behaviour alleged in the statement of claim was as a result of his misperceptions caused by the major depressive disorder. In this regard, see paragraph [11A] of the defence.
[6]Throughout the pleading and evidence, the words “depression” and “depressive” were used interchangeably when referring to the plaintiff’s psychiatric disorder.
In relation to the specific breaches of duty alleged, the defendant responded with specificity in paragraph [12] of the defence. Paragraph [12] provided as follows:
“As to the allegations in paragraph 17 of the Amended Statement of Claim the Defendant:
(a) Denies it failed to take reasonable care for the Plaintiff’s safety as it:
(i)Did not disclose who the complainant was when it investigated the Plaintiff’s complaints;
(ii)     Provided a HR department;
(iii)    Had grievance and complaints procedures in place;
(b) Denies it failed to provide a safe system of work as the investigation into the Plaintiff’s complaints made to the Office of the Health Ombudsman did not disclose who the complainant was and, in any event, the Defendant:
(i)Could not reasonably be expected to prevent workers gossiping;
(ii) Could not reasonably be expected to stamp out rumours in the workplace;
(iii)Could not reasonably be expected “to control communications between staff”;
(iv)    Provided a HR department;
(v)     Had grievance and complaints procedures in place;
(vi)Did not receive a complaint from the Plaintiff in respect of any of the offending behaviour alleged in the Statement of Claim;
(c) Denies it failed to provide a safe place for the Plaintiff to work as the Defendant had appropriate procedures in place to confidentially investigate the Plaintiff’s complaints;
(d) Denies it exposed the Plaintiff to a risk of injury on the basis that, in the Defendant’s belief, the allegation is untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8, 9 and 10 hereof and, in any event, the risk of injury to the Plaintiff was:
(i)     Not a risk of which the Defendant knew;
(ii)     Insignificant;
(iii)    Not foreseeable;
(e) Denies it caused, permitted, or allowed the fact that the Plaintiff had made a complaint to the Office of the Health Ombudsman to become known within the department on the basis that, in the Defendant’s belief, the allegation is untrue because of the matters pleaded above in paragraph 4(b) hereof;
(f) Admits it is vicariously liable for its employees who, in the course of their employment with the Defendant, breach the duty of care owed by the Defendant to the Plaintiff, but denies the allegation of vicarious liability herein for its employees on the basis that, in the Defendant’s belief, the allegation is untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8. 9 and 10 hereof. The Defendant is not required to plead to the allegation of vicarious liability for agents as the Plaintiff has not made any allegations against any person who is identified by the Plaintiff as an agent (as opposed to employee) of the Defendant;
(g) Denies it caused, permitted, or allowed its employees to engage in offending behaviours and denies the allegations they did so on the basis that, in the Defendant’s belief, the allegations are untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8, 9 and 10 hereof and, in any event, the Defendant:
(i)Could not reasonably be expected to prevent workers gossiping;
(ii)Could not reasonably be expected to stamp out rumours in the workplace;
(iii)Could not reasonably be expected “to control communications between staff”;
(h) Denies it failed to properly or adequately supervise its employees within the department to prevent conduct likely to cause a psychiatric injury and denies the allegations the employees engaged in such conduct on the basis that, in the Defendant’s belief, the allegations are untrue because of the matters pleaded above in paragraphs 4(b), 5(b), 6(b) and (c), 7(c) and (d), 8, 9 and 10 hereof and, in any event, the Defendant:
(i)Could not reasonably be expected to prevent workers gossiping;
(ii)Could not reasonably be expected to stamp out rumours in the workplace;
(iii)Could not reasonably be expected “to control communications between staff”;
(iv)Had an employee code of conduct and workplace non-harassment policy in place;
(v)Required all employees to comply with the employee code of conduct and non-harassment policy;
(vi)    Provided a HR department;
(vii)   Had grievance and complaints procedures in place;
(viii)Did not receive a complaint from the Plaintiff in respect of any of the offending behaviour alleged in the Statement of Claim;
(i)   Denies it failed to devise, implement or supervise a proper procedure for dealing with complaints as the Defendant complied with its policies and procedures;
(j)   Denies it failed to properly train, instruct, and/or supervise its employees as the conduct alleged by the Plaintiff did not occur and there was nothing to instruct or supervise its employees on and, in any event, the Defendant:
(i)Could not reasonably be expected to prevent workers gossiping;
(ii)Could not reasonably be expected to stamp out rumours in the workplace;
(iii)Could not reasonably be expected "to control communications between staff”;
(iv)Had an employee code of conduct and workplace non-harassment policy in place;
(v)Required all employees to comply with the employee code of conduct and non-harassment policy;
(vi)    Provided a HR department;
(vii)   Had grievance and complaints procedures in place;
(viii)Did not receive a complaint from the Plaintiff in respect of any of the offending behaviour alleged in the Statement of Claim.
(k) Denies it failed to take any or any adequate or proper steps to assess the risk of psychiatric injury to its employees as the Defendant took appropriate steps to investigate the Plaintiffs complaints in a confidential manner;
(l)   Says there were no further precautions for the safety of the Plaintiff the Defendant could reasonably have taken or been expected to take;
(m)         Says further if, which is denied, the Defendant breached the duty it owed to the Plaintiff:
(i)The breach was not a necessary condition of the occurrence of the offending behaviour alleged in the Statement of Claim and any injury thereby suffered by the Plaintiff;
(ii)It is not appropriate for the scope of liability of the Defendant to extend to any injury suffered by the Plaintiff;
(iii)It was neither reasonable nor necessary for the Defendant to have taken the precautions the Plaintiff alleges the Defendant should have taken;
(iv)The Defendant taking the precautions the Plaintiff alleges the Defendant should have taken would not have resulted in a different outcome in respect of the Plaintiff's mental health condition.”[7]
[7]Certain obvious typographical errors in the pleading have been corrected in this reproduction.
Principles applicable to the duty of care
I turn to a consideration of the legal principles applicable to the imposition of a duty, the scope of such a duty of care, the process of determination of a breach of the duty and causation.
It is uncontroversial that an employer owes an employee a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.[8]
[8]Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307 - 308, referring to Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25.
There will be a co-existent contractual duty of care effectively in the same terms. That contractual duty of care arises by implication from the contract of employment. In this case, no written contract of employment was produced, but it was not suggested that there was anything within the present contract of employment which would militate against the implication of the usual implied term.
In an employment scenario, a duty of care is determined by considerations of the reasonable foreseeability of risk and the “salient features” of the relationship between the employee and the employer.[9]
[9]Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 at [88].
The scope of the relevant duty is important, since it is a matter essential to the determination of the case. Without an identification of the scope of the duty, articulation of breach cannot be decided.[10] The level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the individual case.[11] In this respect, much of the pleaded scopes of the duty in the statement of claim were formulated at a high level of abstraction and lacked a refined specificity which identified what the duty of care obliged to be done. Much of the pleaded breaches of the duty suffered from the same vice.
[10]Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 at [88].
[11]Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 at [22].
Whatever the scope of a duty of care in a given circumstance, it is important to remember that it imposes an obligation to exercise reasonable care, and it does not impose a duty to prevent potentially harmful conduct.[12]
[12]Roads and Traffic Authority NSW v Dederer [2007] HCA 42 at [18] per Gummow J, with whom Callinan and Heydon JJ agreed.
I accept the submission that was made by the plaintiff that the “risk of injury”, as used in s 305 of the WCR Act is not to be restricted to the foreseeability of the particular circumstances in which the plaintiff sustained injury, but encompasses the more general nature of the harm that ensued, or the nature of the circumstances in which the harm was incurred.[13] However, the duty is circumscribed by the notion of reasonableness.
[13]See also Walker v Greenmountain Food Processing Ltd [2020] QSC 329 at [77]-[92].
The plaintiff submitted that in this case the reasonably foreseeable risk was not associated with an employee merely performing the tasks of employment for which he has been retained and paid for. Rather, the risk was submitted to have arisen in respect of alleged conduct the plaintiff was said to have been subject to after he made a complaint about the performance of other employees within the workplace. It was submitted that the response that the plaintiff experienced in consequence of the complaint was to receive treatment from other employees, where receipt of that conduct was not reasonably to be regarded as an incidental part of the workplace. It was submitted that such treatment could have been a reasonably foreseeable cause of psychological injury, and that this risk could not be said to be far-fetched or fanciful.

I will address these submissions after the findings of fact.
The importance of the fact-finding process to the framing of the scope of a duty of care was discussed at some length by the Victorian Court of Appeal in Bersee v State of Victoria [2022] VSCA 231. Their Honours stated:
“[73] Both Koehler and Kozarov identify the relevant principles, and explain how they are to be applied, in the context of a negligence claim for psychiatric injury to an employee arising from the performance of work.”
[74]Koehler proceeds on the understanding that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid injury that is reasonably foreseeable. As part of its duty the employer must take all reasonable steps to provide a safe system of work.
[75] In giving content to that duty, Koehler emphasises that close attention must be given to the particular factual circumstances which is essential to a proper understanding of the interrelated issues of how the duty of care arises, whether injury of the relevant kind was reasonably foreseeable and what is expected of an employer acting reasonably in responding to that risk.
[76] Implicit in the reasoning of the High Court is an acceptance that there is no special rule for psychiatric injury and the ‘central inquiry’ remains constant namely ‘whether, in all the circumstances, the risk of a plaintiff…sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful’. That is not to say that cases of psychiatric injury to employees do not throw up issues that are different to those involving physical injury. Plainly they do. A psychiatric injury may be less easy to foresee than a physical consequence. The psychological makeup of the individual employee, which may be difficult to discern or understand by an employer, may influence whether psychiatric injury is a likely or possible outcome.
[77] In considering what is reasonably foreseeable, it is necessary to have regard to the nature of the work and what the parties have agreed under the contract of employment. That inquiry remains quintessentially factual. In Koehler the High Court refused to embrace as a universal proposition that because stress may cause psychiatric injury, all employers must recognise that all employees are at risk of psychiatric injury from stress at work and therefore such injury is reasonably foreseeable. The vice of that proposition was that it serves to aggregate what is an individual inquiry directed to the duty owed to each particular employee.
[78] As the Court explained:
‘The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton,[14] the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.
[14]Hatton v Sutherland [2002] 2 All ER 1, 13 [23] (Hale LJ).
Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.’
[79]In Koehler the plaintiff failed because the employer had no reason to suspect that the performance of the duties which she had agreed to perform were causing her psychiatric injury. There was nothing about the nature of the duties that would have caused alarm, she had agreed to perform the work thus indicating her ability and willingness to do so and there were no ‘evident signs’ that pointed to a risk of illness or vulnerability.
[80] What Koehler shows is that there is often very little utility in framing the relevant question in a way that is divorced from the factual environment in which the question arises. The proposition that Ms Koehler’s employer owed her a duty to take reasonable care to avoid psychiatric injury throughout her employment is not necessarily incorrect, but it is hardly illuminating. It was the focus on the facts that underpinned the Court’s inquiry as to whether, and when, the duty was ‘engaged’. It was only when the issues came together in a concrete way that the elements of a claim in negligence could meaningfully be examined. As Edelman J observed in Kozarov, negligence does not exist in the air.[15]…”
…[16]
“[88] Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of ‘evident signs’ by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.
[89] Kozarov makes plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees.
…
[97] In assessing what is reasonably foreseeable, it is important to appreciate that the task involves an evaluative assessment undertaken for the purpose of imposing a legal obligation and must take into account the perspective of the person on whom legal responsibility may be imposed.
[98] As Gleeson CJ said in Tame the issue is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.[17] For that reason it is not the same as predictable. As Spiegelman CJ observed in Nationwide News Pty Ltd v Naidu:
‘The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.’[18]”
[15][2022] HCA 12 at [104].
[16]In paragraphs [81] to [87], the decision in Kozarov was examined. It was a case where the subject matter of the worker created inherent risks to the material wellbeing of the workers involved in a particular cause of prosecution.
[17](2002) 211 CLR 317, 331 [12] per Gleeson CJ; [2002] HCA 35. See also Sydney Water Corporation v Turano (2009) 239 CLR 51, 70 [45] per French CJ, Gummow, Hayne, Crennan and Bell JJ; [2009] HCA 42.
[18](2007) 71 NSWLR 471, 478 [23]; [2007] NSWCA 377.
As referred to above, the defendant’s duty is not to avoid risk but to act reasonably in response to it. I accept that what a court must do is identify what a reasonable person would have done rather than looking backwards to identify what would have avoided the injury.[19]
[19]New South Wales v Fahy (2007) 232 CLR 486 at 57 per Gummow and Hayne JJ.
Ultimately, a finding of breach of duty will not inevitably follow from a failure to have eliminated a risk that was reasonably foreseeable and preventable.[20]
[20]Tame v New South Wales (2002) 211 CLR 317 at [299] per Hayne J.
In a case which involves bullying or harassment, questions may arise such as what management was aware of at any particular point in time. The knowledge of management may influence the formulation as to what the scope of the duty required at a particular point in time. Equally, the fact-finding process will need to identify what, if any, of the particular inappropriate acts are found to have occurred. Whether there is a breach of the relevant duty may well involve not simply a consideration of individual acts and whether they are found to have occurred, but also a consideration of the potential cumulative effect of such pleaded acts.[21]
[21]See Robertson v State of Queensland [2021] QCA 92 at [146]-[147] per Henry J, with whom Fraser and McMurdo JJA agreed. See also Stevens v DP World Melbourne Limited [2022] VSCA 285 at [54] per Beech, Macaulay JJA and Forrest AJA.
Equally, knowledge of an employee having a special psychiatric vulnerability may also affect the lens through which the scope of a duty may be formulated. In this case, the plaintiff eschewed from its opening any suggestion that the defendant ought to have been aware that the plaintiff had some type of special psychiatric vulnerability. The case was conducted on this basis. Accordingly, this particular factor plays no role in this case in the identification of the scope of the duty that may have been owed.
Whilst every case must turn on its own facts, it has been observed previously that an employer will generally not owe a duty of care to eliminate gossip in a workplace[22], or to provide a happy workplace.[23]
[22]Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [5] of the reasons of White J and [21] in the reasons of de Jersey CJ and [1] of Pinkus J, who agreed with the reasons of de Jersey CJ and did not evidently depart from them on this issue.
[23]Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 at [60] per McMurdo JA, with whom Fraser JA and Boddice J agreed.
I will bear these principles in mind when deciding this case. The appropriate course is to first make the relevant findings of fact, before then proceeding through the lens of those findings to make determinations as to what was the particular scope of the duty owed, whether that scope of duty was breached and whether that breach was causative of psychiatric injury.
I bear in mind that any factual finding that I make must be on the balance of probability and that the plaintiff bears the relevant onus in this case.
Background facts
I turn to the background facts of this case. They will be dealt with under a number of sub-headings.
(a) The plaintiff’s personal details and education
The plaintiff was born on 18 February 1974 and is currently 50 years of age.
The plaintiff has a partner, with whom he has been in a relationship with for more than 20 years. They have two children together.
In the early 2000s, he studied radiography at RMIT University in Victoria, and ultrasound at Monash University in Victoria. By 2006, he had completed his qualifications. The radiography degree had involved three years of study with an additional one year of internship, and the ultrasound qualification had been via a post-graduate course.
The plaintiff is qualified to do general X-ray work. He has worked in the areas of MRI, CT, and fluoroscopy. The discipline of fluoroscopy is the use of X-rays to provide a live, real-time imaging whilst procedures are undertaken.
At some stage, the plaintiff and his partner decided to move to the Gold Coast. Once at the Gold Coast, the plaintiff worked in private practice at South Coast Radiology for approximately three years. He then moved to the Hospital, where he was performing general X-ray scans, as well as a range of ultrasound studies. Within the sonography section, the plaintiff was part of an ultrasound team of about 15 persons. Within the Department itself, there were approximately 160 persons employed.
The plaintiff described his work as a radiographer and sonographer in the public health system as being about patient care and doing the best for the patients, without having to make decisions around profit.
(b) The plaintiff’s previous psychiatric injury
Some time prior to 2013, the plaintiff injured his shoulder. The shoulder injury occurred from the plaintiff’s work in ultrasound. The undertaking of an ultrasound by the plaintiff required the probe to be in his right hand in circumstances where he was often positioned to the right of the patient. The plaintiff’s left hand would be used to operate a computer at the same time. To perform an ultrasound examination, constant pressure would have to be applied on the probe. Most examinations lasted between 20 - 30 minutes at a time and an operator might scan 15 - 17 patients a day. The plaintiff explained that certain types of examination would require him to position the probe in a way which would require further stretching and extra pressure through the probe. These actions had, in effect, caused the injury to his shoulder. He identified that he had received a tear to the infraspinatus tendon.
The plaintiff explained that the injury to his right shoulder then caused his X-ray duties to become very difficult.
This led to a WorkCover claim being made by the plaintiff.
At this time, the plaintiff sought assistance from a GP and evidently took some time off work. The plaintiff gave evidence of a meeting that occurred at his work with a Mr John Anderson and certain other persons from the HR department at the Hospital. At the meeting, he was told by Mr Anderson that if he did not return to full duties in the following week then the plaintiff should reconsider his employment at the Hospital.
The plaintiff identified that at this time he was not ready to recommence work at the Hospital. He said that he was very upset because he had worked six years for a career that he really loved, and that he had been told by his employer that he was no longer welcome because of the injury. He stated, “I did not receive any sympathy for my injury.”
In addition to the WorkCover claim, by 2013, the plaintiff had commenced legal proceedings in the District Court of Queensland. He was legally represented at this time.
A suite of medical reports were obtained for the court proceeding. One of the reports obtained was from Dr De Leacy and was dated 15 April 2013. That report had been requested by the plaintiff’s side. Dr De Leacy was a consultant psychiatrist and a consultant pathologist. Dr De Leacy saw the plaintiff in his capacity as a psychiatrist.
It should be noted that Dr De Leacy was one of the two expert psychiatrists who were called in this current proceeding.
That report of Dr De Leacy contained, inter alia, the following information.
Under the heading ‘Mental State Examination’, Dr De Leacy recorded the following:
“…he was subdued in this demeanour.
Reasonable rapport was established.
His mood was depressed and he also showed signs of anxiety.
His affect was one of mild constriction.
His speech was without defect, but he spoke quietly.
There was no abnormality of thought in terms of thought content or form and he certainly was not delusional. He was able to give a reasonable history.
Perceptually, there was no abnormality.
Cognitively, he was intact in the gross sense that he is in full consciousness and orientated, but he had only superficial knowledge of current affairs. He was slow at tests of concentration and had poor short-term memory. He does not lack intelligence but is not operating cognitively at the normal level, and this is due to distraction due to his issues. His insight is reasonable and he understands he has a stress-related disorder. His judgment is good, probably, because he is now seeking professional assistance for this.”
Under the heading, ‘Summary and Assessment’, the following was recorded:
“This is a case of a 39 year old man with a partner and child who is no longer working due to an injury. He is on leave because of a shoulder injury that occurred due to the circumstances that he worked under. He has developed secondary psychological issues in relation to his injury and continues to be depressed, anxious and now receiving care from a psychologist, but I note that he has not seen a psychiatrist and not been prescribed anti-depressants.”
Then in answer to specific questions the following appeared:
“1. The mental disorder diagnosed by you:
The mental disorder that I have diagnosed, as would be expected in a case of this type - he is suffering from an adjustment disorder with anxiety and depressed mood. He does not have major depression. An adjustment disorder is a DSM-IV diagnosis that describes the actions to define stressors, which in this case are pain and disability.
2. The PIRS rating for the mental disorder:
The PIRS rating in this case is 5%.”
Then the following appeared:
“…your prognosis
The prognosis in this case is guarded. He is quite [un]well[24] in his mood and quite anxious about his future, and while he has pain and disability, his psychological state is not likely to improve. It is likely the shoulder will remain painful and cause restriction for the foreseeable future, and because of this he will have mood disturbance for the foreseeable future. This may be assisted by counselling, but he is left with the permanent impairment rating I have given…
[24]In cross-examination, Dr De Leacy noted that the word ‘well’ as it appeared in the report should be ‘unwell’. I have included this modification above.
1. Your recommendation for future treatment including an estimate of the costs of such treatment
Mr Kemp should continue to have his treatment. He is having psychological treatment...he may need further sessions for another four months. In addition, an anti-depressant may be helpful…I do [not][25] expect a full resolution of his condition with treatment and he will be left with the permanent impairment rating I have given above.”
[25]In cross-examination, Dr De Leacy accepted that the word ‘not’ should appear after the word ‘do’ as it appeared in the report. I have included this modification above.
Early in the report it was recorded as part of the history communicated by the plaintiff to Dr De Leacy that:
“…he became rather distressed because of his condition and had developed depression, anxiety and significant panic attacks. He said that he would get sweaty palms and inner chest pain. He also referred to a psychologist; he has seen the psychologist five times to date and has continued to see her on a fortnightly basis…
He is depressed, anxious and he is worried - he worries about his future and whether he will be able to get back to work. He needs to earn an income...
His sleep is broken.
His appetite has decreased. His weight has decreased.
His social life is markedly reduced; he hardly ever goes out.
His relationship has suffered with high levels of tension, more dependency on his wife, some irritability and loss of libido.
He has problems with concentration and short-term memory. He is highly distracted by his pain and his thought. He can no longer concentrate enough to watch a movie.
He is fatigued.”

It was recorded that he had no past history of psychiatric disorder. The following was also recorded as follows:
“He has never had a WorkCover claim in the past. He has never had a third-party motor vehicle accident claim. He has never been involved in litigation or bankruptcy. He has no criminal record and no adverse driving record.”
There was a further psychiatric medico-legal report obtained in the 2013 District Court proceeding. This report was obtained by the defendant to that proceeding. It was from a Dr Alfred Chung, who was a consulting psychiatrist. In the report, under current mental health symptoms, it was recorded that the plaintiff felt his sleep was varied on a night-by-night basis, that he had difficulties falling asleep, would only sleep for three or four hours and then wake up at approximately 1.00 am to 2.00 am. He would then sleep for another hour or two before his daughter would wake up at 6.00 am. The plaintiff was also recorded as saying that he might sleep in the afternoon for one to two hours.
The plaintiff was recorded as saying that he lacked energy, had lost his appetite and was unmotivated. His partner was a nurse involved in night duties and he looked after their one child during the day. He was recorded as having difficulty reading a book and that he could not concentrate on watching a movie. He claimed to have poor memory and was regularly tearful. He was recorded as saying that he may have cried three to four times since the injury but did not know what he would cry about. He claimed to feel stressed and worried most of the time and worried about how he would support the family in the future. He claimed he felt anxious most of the time and that he might feel less anxious when he was out and about with his partner and his daughter.
Under current treatment and medication, it was noted that the plaintiff was not on any antidepressants. The plaintiff is recorded as saying that no one had offered him treatment with antidepressants, and he also felt that he would be reluctant to take antidepressant medication. When asked by Dr Chung if he did not feel his depression was bad enough for antidepressants, the plaintiff claimed he did not know.
It was recorded that he was seeing a psychologist, who suggested he do something active on a daily basis. He was recorded as having not yet seen a psychiatrist.
Under a heading, ‘Summary and conclusions’, Dr Chung recorded that the plaintiff satisfied the DSM-IV criteria for an adjustment disorder with anxiety and depressive symptoms based on his own reporting of symptoms. He also proffered the opinion that the plaintiff’s psychological symptoms were associated with his alleged shoulder pain and disability.
The following statement was made in the report:
“When I asked Mr Kemp as to why he did not ask his general practitioner for treatment for depression if he felt that he was depressed, he told me it was not offered to him. He then qualified that by saying that even if he was offered the medication, he would not take it, as he does not want to take anti-depressant medication.”
Under the heading, ‘Prognosis’, Dr Chung recorded:
“I believe Mr Kemp’s prognosis is poor. It seems there is little motivation to return to work. Mr Kemp’s belief is that the injury was caused by his work. He also believes the treatment for his shoulder may worsen his symptoms.
Despite saying that he feels depressed, he has not sought treatment for his depression, apart from seeing a psychologist.”
Dr Chung proffered the opinion that the plaintiff’s symptoms were consistent with an adjustment disorder with anxiety and depressive symptoms, but was unable to proffer whether they arose out of a shoulder injury or they might have arisen out of secondary circumstances. In relation to the question of whether the condition was permanent, Dr Chung gave the answer:
“The condition is unlikely to be permanent. Once the financial incentive has ceased, it is likely he will return to work.”
Later on, Dr Chung gave more detail as follows:
“Mr Kemp has an adjustment disorder with anxiety and depressive symptoms. I do not believe that he has a condition that will permanently cause impairment. His future ability to carry out his work is unlikely to be impaired once his physical situation is no longer a problem to him.”
The plaintiff’s statement of loss and damage from the District Court action in 2013 was tendered into evidence by the defendant in this current proceeding. That document was signed by the plaintiff on 28 May 2013. Sub-paragraph [2](d) of that statement dealt with particulars of any disability resulting in the loss of earning capacity and of the amounts of any future economic loss claim associated with that disability.
At sub-paragraph [2](d)[ix], the following appeared in relation to the plaintiff’s psychological injury:
“Dr Eric De Leacy, psychiatrist, opines that the plaintiff will have psychological issues if he was working in that he would be flustered and would be overcome with anxiety. Dr De Leacy opines that the plaintiff’s pain would affect his concentration and focus. He notes that the job that the plaintiff does is highly responsible and the correct diagnosis depends on the quality of his work. Dr De Leacy opines the plaintiff is not in a position to take the responsibility at the current time or for a reasonable time in the future until his shoulder and mood improves.”
At sub-paragraphs [2](d)[xi] and [2](d)[xii], statements appeared to the effect that the plaintiff’s injuries prevented him from working as a sonographer and radiographer, that the plaintiff would need to re-train, and that the plaintiff was unlikely to earn an income in the future as high as he had been earning with Queensland Health.
Then at paragraph [3] under ‘Particulars of pain and suffering experienced by the plaintiff and the loss of amenities caused by the injuries’, the following appeared:
“(d) The plaintiff suffers from anxiety and depression.”
In his evidence-in-chief, the plaintiff sought to distance himself from the content of the statement of loss and damage. He gave evidence that there were a number of things that he did not feel were very accurate. For example, he identified that he always believed that he was going to return to work and he did not think the level of anxiety that he had was significant enough to impact his ability to go back to work. He added that he was feeling sad, but that was linked to the feeling that he had lost his job, his career and his ability to support his family. Further, if he was able to go back to work, he felt that those feelings would go away. He described his anxiety at that time as very mild compared to the anxiety that he was feeling at the time of the hearing. He also sought to discount his knowledge of the content of the statement of loss and damage. He said that he would have been told to sign the document, that documents were often left at the reception of Shine Lawyers (his then lawyers), that he did not know what the document was for, and he did not have an understanding as to the purpose of the document in his then claim.
At some time after the signing of that document, Shine Lawyers informed the plaintiff that WorkCover had made an offer and their advice was that he should take the offer. He gave evidence that he took offer. The content of the offer was not the subject of evidence in this proceeding.
Whilst not being exact, the plaintiff thought that the time between when he accepted the offer and when he returned to work may have been seven to eight months. He gave evidence that he had done a whole range of things to try and get better, including physiotherapy, acupuncture, herbal medicine in the form of a smoke treatment, and massage. The plaintiff contacted the Hospital in order to seek to return to work.
As part of his then seeking to return to work, the plaintiff participated in a meeting with a Mr Brett Jackson from the Department of the Hospital. In addition to Mr Jackson, a person called Yana and other representatives from the HR department of the Hospital attended the meeting with the plaintiff and his partner. The plaintiff described this meeting as a very hostile environment and said the Hospital personnel were not supportive of his return to work. The plaintiff referred to the person called Yana, saying that he was not ready to return to work and that he should consider doing something else.
Whilst the plaintiff indicated that he was ready to return to work, the Hospital personnel had taken a different view and required the plaintiff to have an independent examination to see if he was, in fact, ready to return to work.
As a result, an occupational therapist appears to have conducted an independent examination. A report was generated which supported his returning to work. A second meeting with the same Hospital personnel was then held. The plaintiff also described this second meeting as hostile. Nonetheless, as a result of the report and the second meeting, the plaintiff did return to work at the Hospital. The return was around Christmas 2014. However, his work practices were modified, due to his past physical injuries.
The new practice put in place was that the plaintiff’s work day was divided into two parts. Usually, either a morning or afternoon would be in the ultrasound department and then the other half of the day would be in the X-ray department. As performing ultrasounds had been identified as the cause of the injury, he was restricted to doing no more than one half day in ultrasound, but he was able to do a full day in X-ray.
It was the plaintiff’s evidence that once he was back at work the anxiety surrounding the potential for him to lose his job, his income and financial stability, and his ability to provide for his family, all went away. At least according to his evidence, he actually felt better than he did before the physical injury to his shoulder. His evidence was that he became a better partner, better father, happier at home and became more active again. He gave evidence that he started doing more hobbies, getting out and doing more, now that he was not restricted by his shoulder injury. He also said that because he was now not working all night on call, he had more time to spend with his family. It can be accepted that the return to work assisted, at least for a time, with an improvement in the plaintiff’s mental state. This was consistent with the evidence which his partner gave.
However, to the extent that this evidence was also intended to suggest that the plaintiff’s mental state remained in a positive unimpaired condition until 11 April 2018, I do not accept that this evidence supported that conclusion. Other evidence, which I prefer, supports that the plaintiff’s mental condition had deteriorated well before 11 April 2018, and certainly by 2017.
(c) The events leading up to 11 April 2018
Significant events occurred in 2017 which affected the plaintiff from a psychiatric perspective. In a six-page document dated 26 August 2018 written by the plaintiff to WorkCover, the plaintiff documents, at least from his perspective, certain alleged inappropriate conduct that he claimed had occurred to him prior to 11 April 2018. He expressed a belief that this had, in conjunction with later conduct, caused him psychological or psychiatric injury. That document was typed up by his partner, but was populated by information the plaintiff was providing to her. The plaintiff gave evidence that at the time he assisted his partner to type this document, he was mentally very unwell. His partner gave evidence to a similar effect.
I accept their evidence on this issue. I am satisfied that at the time this 26 August 2018 document was created, the plaintiff was suffering a major depressive disorder.
The document starts off as follows:
“In the recent few years at work, I have been subjected to a significant workplace harassment and bullying by my managers and staff within the Medical Imaging Department at Gold Coast University Hospital. I have also been subjected to significant victimisation and reprisal for reporting such behaviour.”
It can immediately be seen that the inappropriate conduct alleged in this document extends a significant distance into the past and well before 11 April 2018. Under a heading, ‘Verbal Abuse’, that conduct is said to have occurred in the last two years by the director of medical imaging, Ms Dolkens, the plaintiff’s line manager Ms Green[26], several porters, an MIA, several ward nurses and doctors. Under a heading ‘Intimidation’, no particular timeframe is given. Under a heading ‘Made to feel isolated and alienated’, it was said that the medical imaging supervisor (the plaintiff’s line manager in the radiography section) a Mr Bennetts, had not spoken to him directly for approximately five years.
[26]Referred to in the document as Ms Tuite, but for clarity purposes I will refer to her always as Ms Green.
Under a heading ‘Assault’, the plaintiff records that he was assaulted by a porter whilst working in ultrasound. It is said he made a complaint which resulted in the blame being put back on him and he was made to feel guilty and at fault. It recorded that Ms Dolkens accused him of lying, reporting the incident incorrectly and that he had overreacted. The assault incident being referred to had allegedly occurred on

17 May 2017.
The plaintiff’s version of events was that a porter had delivered a patient very late to the Department and he had politely and professionally explained that due to the tight schedule, the patient could not be scanned. The plaintiff recorded that the porter unexpectedly became very aggressive by yelling and verbally abusing the plaintiff. He says he was standing in a small room with the very physically large porter standing in the doorway, so that he could not leave. He said he was verbally abused and physically threatened for several minutes while the porter stood close to him with clenched fists and the porter waved his arms at the plaintiff before the porter then left. The plaintiff says that he believed that he had been at serious risk and danger of injury. He recorded that the incident was witnessed by a nurse in the Department. He reported the incident on the intranet reporting system via a report known as RiskMan, as he had been trained to do.
The plaintiff then recorded that on 24 May 2017, Ms Dolkens requested a meeting with him. He records that when he sat down in her office, he could tell she had a very aggressive disposition towards him by tone and volume of her voice, facial expressions and her body language. He says that she told him that he had incorrectly reported the incident with the porter by lodging the RiskMan report online, and that the complaint should have been dealt with only within the Department. He records that Ms Dolkens told him that she was offended by the plaintiff’s statement in the RiskMan report, as it suggested that the plaintiff believed the complaint was not taken seriously. The plaintiff says that he expressed his concern to Ms Dolkens that the porters had acted aggressively towards him and that he was expected to work with them following his complaint and during the extended time it took for her to investigate and intervene in the issue. He then specifically recorded in the 26 August 2018 document that “without any evidence or grounds”, she went on to suggest that the incident was his fault and that the plaintiff should be more considerate towards his co-worker.
The plaintiff attributed to Ms Dolkens a comment that sonographers had adequate time in the day for patients who were delivered late from the ward, and that the sonographers were lucky to have 30 minute tea breaks and a one hour lunch break. The plaintiff says that he responded by saying that “[we] do not always get our breaks or even part of them”, and that Ms Dolkens responded very aggressively and told him that she had been advised through Ms Green and another person that sonographers were always provided their full breaks. He said that he told her that he disagreed. He then says that she told him she did not believe him and would rather take the word of both Ms Green and the other person, and that the plaintiff was not being truthful. The plaintiff records that he said he had no reason to lie to her and maybe she should talk to the other sonographers.
He says that during the conversation, Ms Dolkens asked if the plaintiff was intimidated by her, to which he said he responded no, as he did not want her to think he was afraid. He said that he believed she was very much trying to intimidate him. He said the conversation continued for a few minutes and she was very confrontationist, very aggressive and argumentative, and he ultimately left her office feeling he had done something wrong by reporting the incident with the porter and by bringing her attention to some of the issues in the ultrasound section.
I pause to note that the plaintiff later gave evidence to the effect that his alleged experience with Ms Dolkens on this complaint was the reason he made the subsequent complaint to the OHO on a confidential basis. That is, on the plaintiff’s case, he did not have faith in Ms Dolkens or the reporting system.
In evidence, the plaintiff said that Ms Dolkens subsequently sent an email expressing how she enjoyed their conversation, and that she was considering some of his concerns. He expressed the view that he did not understand what part of their meeting she enjoyed, but he certainly did not enjoy it. He said that following this meeting with Ms Dolkens, Ms Green became very unfriendly by not greeting him in the morning or speaking to him during the day, and since that meeting she had taken a further hostile disposition towards him. He attributed this to Ms Green having spoken to Ms Dolkens.
That, of course, was the version given by the plaintiff in the 26 August 2018 document and in his evidence.
Ms Dolkens, on the other hand, accepts there was a meeting but denies that any of this alleged inappropriate conduct occurred during the meeting.
What is uncontroversial is that in May 2017 there was an event between a porter and the plaintiff. As a result of that event, a RiskMan report was lodged by the plaintiff in relation to the incident. A RiskMan report formed part of the internal systems established by the defendant for reporting inappropriate events within the workplace. The RiskMan report was available to all employees in the Hospital on the intranet service and all employees received training on their induction as to its existence and its location.
Ms Dolkens conducted an investigation of the incident. This included Ms Dolkens sending a 23 May 2017 letter to the porter detailing the allegations which had been made by the plaintiff and providing an opportunity for the porter to give a response within seven calendar days.[27]
[27]Exhibit 13.
On 31 May 2017, the porter gave a written response.[28] In that response, he set out why the patient had been late coming to the ward. He agreed that he had raised his voice during the incident, but otherwise disputed the version of events given by the plaintiff. The porter identified that he had personally seen a change in the plaintiff’s personality and attitude towards patients and staff which had caused some tension in the porter group, and identified that this may need to be addressed. In relation to the porter having raised his voice, the porter indicated that he was willing to apologise for that conduct. In relation to the other allegations, he stated that they were false and wanted them withdrawn. The porter indicated that, in those circumstances, unfortunately, an apology would not be accepted by him from the plaintiff.
[28]Exhibit 14.
Ms Dolkens also obtained a statement from a nurse who had been present during the incident.[29] The nurse gave a written statement in which she indicated that generally the day of the incident had been messy from the start as they were short-staffed in some areas of the Department and that there was some issue as to whether the particular patient was an inpatient or an outpatient. Given that there had been some miscommunication, she noted that the porter had become quite frustrated with the situation and when he finally brought the patient down he went to the ultrasound booking room to see what was going on. The plaintiff was identified as being present. She recorded that the porter was observed to be a bit agitated at the situation and raised his voice in retaliation to the plaintiff having asked the porter whether this was ‘the’ patient or ‘a’ patient. The nurse recorded that something had been said by the porter along the lines of “I’m not a mind reader and I didn’t know the patient was supposed to be picked up as he was booked as an outpatient and that is why he is late.” She identified that she was not sure what else was said, but did note that the porter had not sworn and the nurse felt the porter was not physically intimidating. She said that the encounter was very brief and that the porter had said what he had said and then walked straight out. She said that she was standing in the doorway of the booking room to see if this was the patient they were after. The nurse indicated that whilst she could sympathise with the fact that the porter had been frustrated with the situation, that in her view, had not warranted the porter raising his voice. She then reiterated that things had been very messy and disorganised on that day and a lot of staff members were not having a great day, including herself.
[29]Exhibit 15.

I do not accept that there is a duty with a scope to quell such gossip or rumours in the circumstances of this case. Whilst White J acknowledged in Queensland Corrective Services Commission v Gallagher[68] that there may be circumstances in certain cases where such a duty might arise, no such circumstances existed here. Nor is there a duty to provide a happy workplace.
[68][1998] QCA 426 at [5].
Even if I were incorrect and one or all of the scopes of duty existed in this case, there was no breach of the duty.
The defendant, through its management team, had no knowledge that such gossip was occurring. The plaintiff never informed the defendant’s management team that such gossip was occurring. There was no failure to take action to quell the gossip (assuming such a duty with that scope existed), as the defendant had no knowledge of it.
In relation to the happy workplace, I have found that there was no inappropriate conduct engaged in. No doubt there was some distancing by some MIAs from the plaintiff because of their suspicions that he was the complainant. However, this was not victimising, bullying, retribution or harassing type conduct. Even though Ms De Souza said she saw people (being a reference to unidentified MIAs) fail to greet the plaintiff and not speak to him, the evidence did not descend to identifying how often, in what circumstances and exactly by whom this conduct had been engaged in. Even if a failure to greet the plaintiff happened on occasions, that itself would not amount to inappropriate conduct. I am satisfied that there was no shunning or complete refusal to speak to the plaintiff occurring. My specific findings on the seven events supports this. The plaintiff’s capitulation on the allegations against Ms Morgan, Ms Sutherland and Ms Green also underscore this finding.
As with the gossip, there is no evidence that the management was aware of this type of conduct. Certainly, the plaintiff did not complaint to management. There was no failure to take action to provide a happy workplace (assuming such a duty with that scope existed), as the defendant had no knowledge of the workplace being unhappy in the respects complained of.
The fifth scope of the general duty is that there was an obligation to devise, implement and supervise a proper or adequate procedure for dealing with complaints received through the OHO so as to ensure that:
(a)the fact of a complaint having been made by an employee remain confidential to the management staff necessary to investigate and report to the OHO on the complaint;
(b)employees acting as “whistleblowers” were protected; and
(c)its employees did not engage in victimisation, retribution, bullying or harassment of a person who made a complaint to the OHO.
This particular scope can be derived from sub-paragraph [17](c) of the statement of claim.
I have, effectively, already found that there was no duty with a scope:
(a)to maintain the confidentiality of the plaintiff as the complainant;
(b)to devise, implement and supervise a proper or adequate procedure to seek to control the minds of individual employees in terms of their forming suspicions as to who had made the complaint;
(c)to quelling of gossip between the MIAs as to who may have made the complaint, or to provide a happy workplace; and
(d)to make the type of affirming statements suggested by the plaintiff, via his counsel, in closing oral submissions.
In respect of each of those matters, I have also made separate findings on whether a breach occurred and whether any breach was causative of the psychiatric injury. I will not repeat that reasoning.
However, I do find that the defendant would have owed a duty with a scope to take reasonable care to devise, implement and supervise a proper and adequate procedure for dealing with complaints of victimisation, retribution, bullying or harassment of an employee by other employees. I am satisfied that the risk of an employee sustaining a recognisable psychiatric illness would be reasonable foreseeable and not far-fetched or fanciful, if such procedures were not provided.
However, I find that there was no breach of this duty as the defendant had a complaints system in the form of the HR Policy and that system was a proper and adequate one, designed to deal with conduct within the workplace, which would have included the conduct identified.
Further, the defendant had put in place clear procedures and processes whereby inappropriate conduct in the workplace could be reported to management so that it could be investigated. The HR Policy reflected this. The plaintiff had previously made a RiskMan complaint in May 2017. The plaintiff was evidently well aware of his right to make a complaint about what he saw as inappropriate conduct. The process then allowed for an investigation to take place and action to be taken in accordance with an ultimate determination.
The HR Policy allowed for gradations of complaints, commencing with informal, moving to formal and included the ability to make higher level complaints if the inappropriate conduct was said to have been engaged in by the immediate managers of the complainant. Quite separately, Ms Dolkens and Ms Green both had personal open-door policies. Employees could come and see them and raise any concerns. This was known to the general employee group.
I am satisfied that all of these processes meant that appropriate steps had been taken against the risk of psychiatric injury of employees from inappropriate conduct.
Ms Dolkens acted consistent with the HR Policy when she was referred the OHO complaint.
Accordingly, I find that there was no breach of the duty.
Even if I were incorrect on my finding of no breach of a duty with this scope, given my findings that the pleaded inappropriate conduct did not occur, any breach could not have been causative of loss. That is, even if there were some inadequate system in place to deal with complaints of vicitimisation, retribution, bullying or harassment, I have found that none of that type of inappropriate conduct occurred.
I also find that there was no breach because the plaintiff never sought to engage the procedures or processes. No complaint of such inappropriate conduct was made by the plaintiff in accordance with the system. In those circumstances, the inadequacies of the procedures and processes (if they had existed) were irrelevant, as the system itself was not sought to be engaged.
Further, the causes of the psychiatric injuries as I have found them would have occurred, even if the procedures and processes had been adequate and engaged. That is, the plaintiff would still have been affected by his disappointment in the outcome of the OHO complaint and would have always formed the erroneous perception that there had been disclosure by Ms Dolkens of his identity as the complainant.
Before leaving the scope issue, I make clear that I have subsumed the breach pleaded in sub-paragraphs [17](j) of the statement of claim into my discussions of duty and scopes above. Those discussions capture the substance of how that pleaded allegation was advanced at trial.
Finally, I note that a form of vicarious liability was pleaded against the defendant in sub-paragraph [17](f) of the statement of claim. That vicarious liability allegation requires a finding that there had been the pleaded inappropriate conduct engaged in by the five persons referred to in the statement of claim, or a combination of them. As I have found that such inappropriate conduct was not engaged in, no issue of vicarious liability can arise. That part of the claim cannot therefore be made out and also must fail.
Quantum
I have found against the plaintiff on liability. Accordingly, there is strictly no quantum to assess.
Nonetheless, the following assessment of quantum is made on the assumption that the defendant has been found liable for the causation of psychiatric injury to the plaintiff.
(a) General damages
The starting point for general damages is to recognise that both Dr Chalk and Dr De Leacy had assessed at the time of their first reports a PIRS rating of 17. Within the Workers’ Compensation and Rehabilitation Regulations 2014 (“the Regulations”) operative as at 31 October 2022, that PIRS rating would come under the heading Part 2 Mental Disorders, within Item 11 Serious Mental Disorders. Item 11 covers a PIRS rating between 11 per cent and 30 per cent. That Item 11 would then have an ISV range of between 11-40, and if there had been no pre-existing condition, I would have assessed an ISV amount of 25, having regard to the adverse impact of the condition which now afflicts the plaintiff.
However, I do not assess the whole of the 17 per cent impairment as being compensable for the following reasons.
I am satisfied that there was an existing depressive disorder, which pre-dated 11 April 2018. The decomposition after 11 April 2018 was, in effect, an aggravation of this disorder. Dr De Leacy sought to attribute a 10 per cent reduction on the PIRS figure as reflecting an established practice of psychiatrists in the Medical Assessment Tribunal where it is impossible to disentangle the effect of the pre-existing disorder. Whatever the practice is in that Tribunal, I prefer the approach of Dr Chalk, where he, doing the best that he could, attributed 50 per cent of the psychiatric injury to the pre-existing disorder. I am not satisfied that a 10 per cent discount would fairly represent the effect of the pre-existing condition.
This discount of 50 per cent would reduce the injury to a PIRS rating of 8.5. The plaintiff would then sit within Item 12 of Schedule 2, which covers PIRS ratings of between 4 per cent and 10 per cent. The ISV range is 2-10. I find that an assessment at the upper end of that range is justified, given the PIRS rating for that band and the prognosis of the psychiatric disorder. I am of the view that a rating of 7 for the ISV would be appropriate, even taking into account the fact that the plaintiff has not been prepared to be treated with antidepressants. The defendant had sought an ISV of 3.
Moving then to Schedule 12 of the Regulations, and by reference to Table 8 for an injury sustained from 1 July 2018 to 30 June 2019, Item 2 for an ISV of 7 provides for a calculation of $1,760 times 7, which would come to an amount of $12,320. In accordance with that calculation, I would award the sum of $12,320 for general damages.
I note that s 306N of WCR Act does not permit interest to be awarded in respect of this amount.
(b) Special damages
In respect of special damages, there was agreement reached that the plaintiff had incurred the expenditure which appears in Exhibit 19.
Exhibit 19 records the following expenditure:
(a)Pharmaceutical expenses              $250.00;
(b)Medical expenses  $1,000.00;
(c)Travelling expenses  $2,000.00;
(d)Medicare refund  $4,586.60; and
(e)WorkCover Queensland refund     $10,895.53
Each of the above amounts cumulatively come to the figure of $18,732.13.
The defendant accepted that the full amount for the WorkCover Queensland refund should be allowed as special damages. This was the $10,895.53 amount. However, the defendant submitted that there should be a discount on the residual sums. This was said to be on the basis that by September 2020, the period of the aggravation of the underlying depressive disorder should be treated as if it had not persisted. The basis for this contention was a proposition to the effect that if the plaintiff had engaged in appropriate treatment, including the use of antidepressants, the condition would have resolved by that time.
I do not accept the full extent of that submission.
I accept that there is a time when, on the balance of probability, proper treatment which includes the use of antidepressants, will have resolved the depressive disorder (as aggravated) to an extent that the plaintiff would be fit to work, including as a sonographer and radiographer.
Dr De Leacy in cross-examination conceded that he could not identify any reason why the plaintiff could not be treated successfully with such antidepressants. Dr De Leacy also conceded that many people who are treated for depression by the taking of such medication are able to function well at work, and the use of medication would significantly enhance the prospects of recovery by the plaintiff. Dr De Leacy also conceded that antidepressant medication would likely hasten the plaintiff’s recovery. Dr De Leacy referred to social media having an effect on people’s reluctance to use antidepressant medication. He referred to being very frustrated by this.
In his evidence in reply, Dr De Leacy gave evidence that such medication does not always work, but then went on to observe that with some people such depressive illness will, over a long period of time, just resolve, even without medicine. He said it usually took five years.
Certain earlier reports of a Dr Roy were tendered into evidence. Dr Roy was also a psychiatrist. He was not called in the case.
Dr Roy had seen the plaintiff in November 2019 and produced a report dated 28 February 2020. He had recorded a plan for the plaintiff which included the following statement, “(2) Unwilling to take any antidepressants or anti-anxiety medications at this point in time. However, if there was no improvement, then we could consider using Efexor and Prazosin.” A subsequent report of 25 May 2020 again recorded the plaintiff’s unwillingness to take any antidepressant or anti-anxiety medication.
I am of the view that the plaintiff, acting reasonably, ought to have engaged in psychiatric and psychological treatment, which included the use of antidepressants for the treatment of his Major Depressive Disorder. I find that he ought to have engaged with antidepressants by the date of the issue of the first report from Dr De Leacy, which identified in no uncertain terms that he ought to undergo immediate treatment. That date is 25 August 2020. The plaintiff had, of course, Dr Roy’s prior reports at that time. Dr De Leacy conceded in cross-examination that he would have suggested the use of antidepressants to the plaintiff at his interview. It is clear that Dr Roy must have also done this as well.
The plaintiff had an entrenched and unreasonable mindset against the use of antidepressant and anti-anxiety medication. I have allowed from the date of the injury to the date of the Dr De Leacy’s first report (about two years) to accommodate a reasonable period for the plaintiff to overcome his unreasonable views.
I would then allow an additional three years from 25 August 2020[69] for the period over which the aggravated nature of the depressive disorder could be appropriately diminished by the receipt of psychiatric and psychological treatments with associated use of antidepressant medication. This allows five years in total from the original incurring of the aggravation, calculated from the end of August 2018.
[69]Which I have rounded up to the end of August 2020.
I accept the defendant’s submission that the plaintiff should have engaged in appropriate treatment. Both Dr Chalk and Dr De Leacy were of the view that the plaintiff should engage in such treatment. However, given the timeframes I have allowed for that treatment to be effective, I would not discount any of the special damages claimed. I have therefore allowed them in full.
(c) Past economic loss
The plaintiff submits that s 306J of the WCR Act is operative in the circumstances of this case. That section is applicable if the court is considering the making of an award of damages of loss of earnings and the award is unable to be precisely calculated by reference to a defined weekly loss.
Section 306J of the WCR Act does not operate to modify the common law principles covering the assessment of loss of earning capacity, but requires the court to be satisfied that the worker has suffered loss, having regard to the person’s age, work history, actual loss of earnings and any permanent impairment or other relevant matters. If the court awards damages, it must state the assumptions on which the award is based and the methodology it has used to arrive at the award.
The starting point is that I am satisfied that the court is unable to precisely calculate a loss and damage for past economic loss by reference to a defined weekly loss so that s 306J of the WCR Act is engaged.
Secondly, I have had regard in Exhibit 12 tab 41 to the summary of the plaintiff’s income and tax records. They show the following.
(a)In the year ending 30 June 2016, the plaintiff had gross earnings of $116,250 and net earnings of $82,768 (an average of $1,591.69 per week) as a radiographer and a sonographer.
(b)In the year ending 30 June 2017, the plaintiff had gross earnings of $98,854 and net earnings of $71,864 (an average of $1,382 per week) as a radiographer and a sonographer.
(c)In the year ending 30 June 2018, the plaintiff had gross earnings of $109,241 and net earnings of $78,771 (an average of $1,514.83 per week) as a radiographer and a sonographer.
(d)In the year ending 30 June 2019, the plaintiff had gross earnings of $97,836 and net earnings of $71,386 (an average of $1,372.81 per week) as a radiographer and a sonographer.
(e)In the year ending 30 June 2020, the plaintiff had gross earnings of $114,872 and net earnings of $82,452 (an average of $1,585.62 per week) as a radiographer and a sonographer.
(f)In the year ending 30 June 2021, the plaintiff had gross earnings of $32,081 and net earnings of $20,423 (an average of $392.75 per week) as a radiographer and a sonographer.
(g)In the year ending 30 June 2022, the plaintiff had gross earnings of $4,928 and net earnings of $3,576 (an average of $68.77 per week) as a radiographer and a sonographer.
I note that at the time the plaintiff was said to have incurred his injuries in 2018, he was approximately 44.5 years of age. At the time of trial, he was approximately 49 years of age and had a life expectancy of some further 38.9 years.
The plaintiff submits that the past loss earning ought to be calculated in the figure of $396,000. This is a reference to the calculation contained in sub-paragraph [20](c)(iii) of the statement of claim. It used a weekly figure of $1,600 net earnings per week. I do not accept the plaintiff’s submission that this is the appropriate figure for past economic loss. My reasoning is as follows.
I reject the plaintiff’s submission that there was no evidence of any pathology or symptomology prior to the occasion when he was said to have suffered loss. I have found, there was an already existing depressive disorder which I have found to represent 50 per cent of the overall 17 per cent PIRS assessment.
As I have set out above, I have allowed five years in total for recovery from the Major Depressive Disorder, starting from September 2018. I have found that by 25 August 2020, the plaintiff, acting reasonably, should have engaged in the use of antidepressants as part of his proper treatment of the disorder. I have found that at the end of that five year period, the plaintiff would have been able to re-engage with his work, including his work as a sonographer and radiographer. It is this five year period which is relevant to the calculation of past economic loss.
The next submission of the defendant was that the plaintiff’s calculation of past economic loss operated from the premise that he had ceased work altogether in August 2018. The defendant, by its counsel, submitted that there was evidence which demonstrated that this was incorrect. The example given was that the meeting records in evidence showed the plaintiff attending a meeting at work in October 2018.
No doubt there was some work performed after 2018, but it does not seem to have been extensive.
The more important point is that the summary of the plaintiff’s income tax records indicate that for the financial years ending 30 June 2018, 30 June 2019, 30 June 2020, the plaintiff was receiving what I would regard as normal levels of gross and net income. It is evident that some of those amounts were being paid by the Hospital and some were being paid by WorkCover. Only the WorkCover amounts have been said to be refundable.

The evidence showed that up until 25 September 2020, WorkCover had paid weekly benefits and lump sums in a total of $141,374.07. WorkCover accepts that at least that amount for that designated period should be awarded as past economic loss. I accept this submission.
The defendant submits that no more should be paid for the period up to 25 September 2020, as at that stage the plaintiff had not suffered loss as he was still receiving pay from the Hospital and WorkCover so as to produce gross and net income to an appropriate level. I accept that submission as well. In doing so, I note that in the financial year ending 30 June 2021, a net amount of $20,423 is recorded for radiographer/sonographer. Doing the best I can, I have assumed that this sum is referrable to the first quarter of that financial year, namely July to September 2020.
Again, doing the best that I can, and consistent with my view expressed above, I would award past economic loss for the period from October 2020 to August 2023. This is a period of two years and 10 months where the plaintiff ordinarily should have been earning approximately $78,000 per year. I have taken this as a reasonable global net amount by looking at the net figures for the financial years ending 30 June 2016, 30 June 2017 and 30 June 2018. That equates to $6,500 net per month or $1,500 net per week. I have chosen the figure $1,500 net per week rather than the $1,600 figure from the pleading, as a consideration of the three financial years supports that yearly income for the plaintiff fluctuated, and the $1,500 figure better reflected the potential effects of such fluctuation.
Multiplying 2.833 years (being two years and 10 months) by $78,000, I reach the figure of $220,974. Given that I have decided that there was a failure to mitigate by failing to engage in appropriate treatment, I have treated the end of August 2023 as the point in time the plaintiff should have resolved his Major Depressive Disorder to a level that he was able to work as a sonographer and radiographer.
I will allow a further six months on top of that time period to represent a reasonable period for him to find work as a sonographer or radiographer in private practice. No evidence was led about these types of jobs not being readily available. Given his experience in these areas, the plaintiff would be well credentialled to do such work. Using the figure of $6,500 net per month, this additional figure comes to $39,000 for this six month period to the end of April 2024. I add these figures to the $141,374.07 to reach a total of $401,348.07.
This is the amount that I would award for past economic loss.
I note of that sum, $141,374.07 will be repayable to WorkCover, and is inclusive of any Fox v Wood damages for the period up until 25 September 2020 when the WorkCover payments ceased.
I was also pressed by the defendant to allow no past economic loss, beyond the refundable amount to WorkCover because it was said that it was inevitable that the plaintiff would have had to cease work because of the pre-existing depressive disorder which existed before 11 April 2018. I have not accepted that argument. I have not discounted past economic loss to account for that risk. The plaintiff had been able to function at work prior to 11 April 2018. Circumstances associated with this OHO complaint caused him to decompensate. It is not inevitable that he would have decompensated eventually, regardless of the OHO complaint circumstances. None of the doctors addressed this issue in their evidence. In the absence of some evidentiary basis, I am not satisfied that I should discount the past economic loss. Accordingly, I have not done so.
In relation to past loss superannuation, I would allow the amount of $24,697.53, being calculated on the $259,974 sum in accordance with an average rate of 9.5 per cent. That rate was suggested by the plaintiff. The defendant did not challenge it.
(d) Future loss of earning capacity
I have found that, acting reasonably, the plaintiff should have been back in employment by April 2024. Accordingly, I find that the plaintiff is not entitled to any future economic loss.
(e) Future loss of superannuation
For the reasons under sub-heading (e) above, I would not allow a claim for future lost superannuation.
(f) Future expense damages or costs of mitigation
Given that my assessment is based on a finding that the plaintiff should have undertaken appropriate treatment in mitigation of his loss, there should have been an award for the costs of the mitigation. This is not future expenses, but rather an allowance for the costs which the plaintiff would have incurred in order to reasonably mitigate his loss. I would allow:
(a)Pharmaceutical expenses in the sum of $4,000 (on a global basis);
(b)Travel expenses for medical, pharmaceutical and rehabilitation attendances in the sum of $1,200 (on a global basis); and
(c)Psychiatric and psychologist treatments over three years in the sum of $10,000 (on a global basis).
I note the rates which Dr De Leacy gave in his 31 May 2022 report of $400 per session for a psychiatrist and $180 per session for a psychologist. I have assumed that the need and frequency of those sessions would be greater at the start of the treatment but would reduce over time. Doing the best I can, the $10,000 global amount, in my view, appropriately compensates for these costs.
(g) Interest on past loss of earning capacity
The calculation for this sum is pursuant to the formula set out in s 306N of the WCR Act. The calculation is as follows: 3.2 per cent x $259,974 x 4.083 years[70] x 0.5 = $16,983.58.
[70]The period starts at the beginning of October 2020 and finishes at the end of October 2024.
In summary, if I was incorrect on liability, the following would be the award of damages:

Damage type Amount

General damages $12,320.00

Special damages $18,732.13

Past economic loss $401,348.07

Past loss superannuation 24,697.53

Future loss of earning capacity $0

Future loss of superannuation $0

Mitigation costs $17,983.58

Interest on past loss of earning capacity $20,853.33

TOTAL $495,934.64

Conclusion

I have found against the plaintiff on the issue of liability. As a consequence of this, the claim ought to be dismissed. I will make that order.
I will hear the parties on costs of the proceeding.

CITATION:	Kemp v Gold Coast Hospital and Health Service [2024] QSC 259
PARTIES:	JAMIE ANDREW KEMP (plaintiff) v GOLD COAST HOSPITAL AND HEALTH SERVICE (ABN 82 616 992 416) (defendant)
FILE NO:	BS 8955 of 2021
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	11, 12, 13, 14, 17, 18, April 2023 and 25 May 2023
JUDGE:	Sullivan J
ORDER:	1. The plaintiff’s claim is dismissed.
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – where the plaintiff seeks damages for breach of duty of care by the defendant in contract and in tort– where the plaintiff was an employee of the Gold Coast University Hospital – where the defendant operated the Gold Coast University Hospital – where the plaintiff lodged a complaint with the Office of the Health Ombudsman against other persons employed by the defendant – where the complaint was referred back to the defendant for investigation – where the Office of the Health Ombudsman erroneously disclosed the identity of the plaintiff as the complainant to the defendant – where the plaintiff alleges his identity as the complainant became known within his department – where the plaintiff alleges he suffered a psychiatric injury as a result – whether the defendant owed the plaintiff a relevant duty of care TORTS – NEGLIGENCE – STANDARD OF CARE – SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – whether any duty of care included a duty not to cause, permit, or allow, the identity of the plaintiff as the complainant to become common knowledge – whether any duty of care included a duty to take reasonable steps to preclude members of staff from forming suspicions as to the identity of the complainant – whether any duty of care included an obligation to ensure that members of staff do not take offence from their being having been the subject of the complaint – whether any duty of care included an obligation to quell gossip and rumours concerning the identity of the complainant – whether any duty of care included an obligation to implement procedures to ensure the confidentiality and protection of complainants – whether any duty of care included an obligation to ensure that members of staff do not engage in certain conduct TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – whether it was reasonably foreseeable that the plaintiff would suffer a psychiatric injury – whether the psychiatric injury sustained by the plaintiff was caused by a breach of duty of care by the defendant Health Ombudsman Act 2013 (Qld), s 92 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s 305E, s 306 Workers’ Compensation and Rehabilitation Regulations 2014 (Qld) Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bersee v State of Victoria [2022] VSCA 231 Eaton v Tricare (Country) Pty Ltd [2016] QCA 139 Fox v Wood (1981) 148 CLR 438 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Hatton v Sutherland [2002] 2 All ER 1 Hayes & Ors v State of Queensland [2016] QCA 191 Jones v Dunkel (1959) 101 CLR 298 Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44 New South Wales v Fahy (2007) 232 CLR 486 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 Roads and Traffic Authority NSW v Dederer [2007] HCA 42 Robertson v State of Queensland [2021] QCA 92 Sheather v Country Energy [2007] NSWCA 179 Stevens v DP World Melbourne Ltd [2022] VSCA 285 Sydney Water Corporation v Turano (2009) 239 CLR 51 Tame v New South Wales (2002) 211 CLR 317 Walker v Greenmountain Food Processing Ltd [2020] QSC 329 Wolters v The University of the Sunshine Coast [2012] QSC 298
COUNSEL:	R D Green for the plaintiff A S Mellick for the defendant
SOLICITORS:	Smith’s Lawyers for the plaintiff McInnes Wilson Lawyers for the defendant

Damage type	Amount
General damages	$12,320.00
Special damages	$18,732.13
Past economic loss	$401,348.07
Past loss superannuation	24,697.53
Future loss of earning capacity	$0
Future loss of superannuation	$0
Mitigation costs	$17,983.58
Interest on past loss of earning capacity	$20,853.33
TOTAL	$495,934.64