At what point does a psychiatric injury become reasonably foreseeable to an employer?

The Queensland Supreme Court has recently considered in detail whether a psychiatric injury suffered by a worker subject to disciplinary action was reasonably foreseeable. The Court’s decision highlights the importance for employers to be on the lookout for employees who may be developing a psychiatric injury.

Background

In the case of Potter v Gympie Regional Council [2022] QSC 9, Ron Potter was a manager at the Gympie Regional Council (Council) and had worked there since 2008. After an internal review of staff performance in 2013, various issues arose regarding Mr Potter’s performance as a manager.

During interviews with management between May 2014 and July 2014, additional complaints were made against Mr Potter by a staff member, which the Council determined should be investigated by an external investigator.

On 2 July 2014, Mr Potter was suspended pending the outcome of the investigation.

The investigator ultimately found that there was insufficient evidence to substantiate the allegations of serious misconduct against Mr Potter. However, some findings of lesser misconduct and poor management were made. The investigator also recommended that Mr Potter’s conduct was sufficient to warrant disciplinary action and his performance as a manager be considered.

On 13 August 2014, Mr Potter lodged a medical certificate in relation to a psychiatric injury of work stress and anxiety. The Council did not provide the outcome of the investigation to Mr Potter until January 2015.

Mr Potter subsequently brought a claim in the Supreme Court of Queensland that he suffered a psychiatric injury as a result of the negligence of the Council in dealing with work performance issues and suspending him from his employment.

Issues

The main question before the Court was whether it was reasonable to require the Council to contemplate the risk of psychiatric injury to Mr Potter and to take reasonable care to prevent such an injury.

Mr Potter claimed that he suffered a psychiatric injury as a result of the negligence of the Council in dealing with his work performance issues and suspending him from his employment. Mr Potter contended that:

• a duty of care was owed to him by the Council to take reasonable care to avoid exposing him to unnecessary risk of injury and to provide and maintain a safe workplace
• the relevant duty of care required the Council to take reasonable care to avoid exposing him to a foreseeable risk of psychiatric injury in his employment.

Conversely, the Council denied that the injury resulted from their negligence and that no duty of care was owed to Mr Potter in relation to the suspension. Specifically, the Council argued that:

• the recognised duty of care of an employer to take reasonable care to guard against a foreseeable risk of injury does not extend beyond the conduct of tasks an employee was engaged to perform
• the act of suspension of an employee is an exercise of a contractual right and that the exercise of a contractual right does not give rise to (or be a breach of) a duty of care.

Findings

Brown J dismissed Mr Potter’s claim and held that the risk of Mr Potter sustaining a psychiatric injury was not reasonably foreseeable until 13 August 2014, when the Council received Mr Potter’s medical certificate.

Brown J acknowledged that the Council would have been aware of the pressures on Mr Potter during the meetings in June 2014 and when he was suspended on 21 July 2014. Despite this, “the pressures were not of the level that they alone would make a psychiatric injury reasonable foreseeable assuming Mr Potter was a person of normal fortitude” (at [412]).

Accordingly, the Council was not required to take reasonable steps to avoid the risk of Mr Potter sustaining a psychiatric injury. On this finding alone, Mr Potter’s claim failed.

Brown J also considered the likely outcome if a duty of care was owed to Mr Potter to avoid a foreseeable risk of a psychiatric injury. In this respect, Her Honour was not satisfied that the duty of care was breached or was causative of the psychiatric injury. In reaching this conclusion, Her Honour considered that:

• the Council was required to follow its internal policies and procedures to investigate the allegations against Mr Potter
• given Mr Potter could not return to work because of his injury, it was not unreasonable for the Council to not have informed him about the outcome of the investigation until January 2015 because of the risk of exacerbating his condition.

For completeness, Brown J also addressed the issue of causation. Applying the ‘but for’ test in the circumstances, Her Honour was unpersuaded that Mr Potter would not have suffered the injury but for his suspension, given the allegations against him would still have been the subject of an investigation.

Takeaways

In this case, the Court found that the fine line of foreseeable risk favoured the employer and that no duty of care was owed. This decision highlights the importance for employers to be on the lookout for employees who may be developing a psychiatric injury.

The case also reiterates that the date when an employer becomes aware of a worker’s psychiatric injury is often when the injury first becomes foreseeable, but this may not always be the case.

If you have any questions or need assistance with a workplace law issue, please contact us or send us your enquiry here.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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