Further to our popular “stress claims” topic, and the highlighted, very stressful uphill battle for most psychologically injured workers face in having to prove their injury was caused at work and that “reasonable action was taken in an unreasonable manner or unreasonable action taken in a reasonable manner”, which obviously will be fought tooth and nail by the insurance company; the difficult and complex decision whether to lodge a workcover claim or to accept a “separation” package; or to litigate the claim; we came across this interesting yet disheartening WA legal case whereby the ultimate question is asked whether or not the employer had breached duty of care and that the psychiatric injury was foreseeable. Notwithstanding that the injured worker was found to have suffered a serious psychiatric injury, the judge found that there had been no breach in “duty of care” on the part of the employer, and as such dismissed the case.
Again, this case highlights the difficulties injured workers face in proving negligence on the part of the employer (for causing a foreseeable psychiatric injury), and, ultimately for successfully litigating psychiatric injuries by means of common law.
When has the employer done enough to avoid liability for psychiatric injury claim?
The injured worker was employed by the defendant as a registered nurse in WA. In December 2004 she made a workers’ compensation claim against the defendant (her employer), stating her psychiatric injury was (allegedly) caused by a series of stressful management decisions taken by her employer.
Workcover WA established liability for the injured workers psychiatric injury, and accepted her claim.
Once the workcover WA accepted her claim, the injured worker issued District Court proceedings seeking Common Law damages against her employer, alleging that their breach of duty of care and breach of contract caused her psychiatric injury.
The injured worker based her psychiatric injury claim on several incidences involving management’s treatment of her. These included:
- unfair roster changes which she claimed were designed to intimidate her for raising issues with management over the running of the facility
- enforced leave taking
- a stressful work environment
- an incident involving her self-administering medication (Maxolon- an anti-emetic) at the employer’s premises and the “disciplinary process” that followed
Was there a foreseeable risk of (psychiatric) injury – or not?
The injured worker relied on the evidence of colleagues who spoke of their concerns about management’s treatment of others.
BUT, hold your breath, the evidence was deemed to be of limited relevance because…
What’s more, …
Wow! Far fetched… legal “argument”… but there you go!
Was there a breach of duty of care – or not?
The Judge was satisfied that the employer had complied with all relevant awards and the contract of employment except for the unfair roster changes and the enforced leave.
The Judge also noted that some of management’s conduct could be… characterised as a genuine mistake and some as an intention to bring the practice into line with modern clinical practice standards…. oh really!?
Early concerns raised by the injured worker were believed and stated to have been adequately dealt with. Bang!
Managers had been required to attend workplace bullying workshops and the defendant had adhered to all discipline and harassment policies in its dealings with the injured worker. Oops!
The Judge was satisfied that the employer had provided a safe workplace and exercised reasonable care in the discharge of its obligations as an employer and accordingly dismissed the injured worker’s (common law) claim against the employer! Kick in the gut… INSULT to injury!
[post dictated by workcovervictim and manually inserted on behalf of workcovervictim]
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