In Kemp v Gold Coast Hospital and Health Service the Plaintiff claimed damages for a psychiatric injury suffered during mid-2018 in the course of her employment as a Radiographer and Sonographer with the Defendant, trading as Gold Coast University Hospital.
The Plaintiff claimed damages for breaches of the employer’s duty of care which the Plaintiff alleged caused an injury over a period of time between approximately April to August 2018.
The Plaintiff alleged the Office of the Health Ombudsman (OHO) erroneously disclosed to her employer that the Plaintiff had made a complaint about the conduct of various Medical Imaging Assistants (MIA) during December 2017. The Plaintiff alleged inappropriate conduct by the Employer’s Acting Service Director of Diagnostic Services (ASDDS) during a meeting convened to discuss the Plaintiff’s complaint, an April 2018 confrontation between a particular MIA and the Plaintiff, and more general behaviour of the ASDDS and several of the Defendant’s MIAs between April and August 2018.
The Plaintiff alleged the employer was vicariously liable for the conduct of the ASDDS and various MIAs because the employer had disclosed it was the Plaintiff who complained to the OHO.
In a judgment delivered on 30 October 2024, Justice Sullivan of the Queensland Supreme Court dismissed the Plaintiff’s claim, finding the Plaintiff had not made out either the alleged breaches of duty in the Statement of Claim or that the alleged breaches caused psychiatric injury to the Plaintiff.
With respect to the duty of care owed by the employer to the Plaintiff, Justice Sullivan stated: “…it is important to remember [the duty of care] imposes an obligation to exercise reasonable care, and it does not impose a duty to prevent potentially harmful conduct” and “the defendant’s duty is not to avoid risk but to act reasonably in response to it“.
Justice Sullivan accepted the employer’s submission the Plaintiff had not availed himself of the employer’s grievance and complaint procedures which were available to all workers.
Specific to His Honour’s consideration of cases involving bullying or harassment, he stated: “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, a 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”.
His Honour further considered whether the employer owed a general duty to quell any gossip or rumour concerning the identity of the complainant to the OHO and/or to implement procedures to ensure the confidentiality and protection of complainants. His Honour found no such duties were owed, that the Defendant had no knowledge of the pleaded gossip, was under no obligation to stamp out rumours it was unaware of, and ultimately found there was no inappropriate behaviour engaged in by the MIAs or ASDDS.
The duty of care owed by employers to workers is of a high standard and encompasses a broad range of circumstances. However, in determining whether an employer has breached its duty of care to a worker, Courts must determine whether an employer was on notice of relevant facts to which a response was required and, if a risk of potential harm becomes known to an employer, whether a reasonable person in the position of the employer would have taken precautions against the risk of harm in all the relevant circumstances.
Justice Sullivan ruled that while every case must turn on its own facts, an employer will generally not owe a duty of care to eliminate gossip or provide a happy workplace, and no such duty operated in this case.
