When has the employer done enough to avoid liability for psychiatric injury claim?


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 case

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…

…it failed to show that they showed signs of (psychiatric) illness that management should have noticed and therefore that the injured worker could also suffer (psychiatric) illness as a result of her treatment in the work place.

What’s more, …

…the court found there was no evidence of abnormal sickness or absenteeism among the injured workers’ colleagues such that the employer (the defendant) should have been alerted to a risk of injury to the injured worker.

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!

The case: O’Donovan v Western Australian Alcohol and Drug Authority [No2] [2013] WADC 13


[post dictated by workcovervictim and manually inserted on behalf of workcovervictim]


6 Responses to “When has the employer done enough to avoid liability for psychiatric injury claim?”

  1. The Seven Modern Sins:

    Policies without principles

    Pleasure without conscience

    Wealth without work

    Knowledge without Character

    Industry without Morality

    Science without Humanity

    Worship without Sacrifice

  2. Nursing is infamous for “picking by protocol”. Where one group of nurses can commit murder whilst another can’t hand out a paracetamol late without an incident form. No rules for the few, ethics, protocols and standards in the extreme for whom they choose. It’s all legally above board but morally hypocritical. I noticed this judge never challenged the medication errors made by other staff members that were over looked. Questionably overlooked. Any nurse working in that type of toxic environment should stick firmly to the rules and their ethics. They won’t. Be honest in your work. These hypocrites look for errors don’t give them anything that will stick. It’s a dirty game they play.

  3. i read the case details and it also seems strange that her lawyers added the “Maxolon incident”. Even if it was not added she would not of been awarded exemplary damages in my opinion. should still appeal.


    HuntingWorkcover April 15, 2013 at 2:58 pm
  4. Unfortunately I suspect this nurses case was ultimately doomed to fail because of the “Maxolon incident” – the nurse asked for the keys to the medicine supply room to obtain Maxolon for her own use which she injected into herself in the workplace. She was caught and disciplined (personally I would have thought this would have been a sackable offence?? but as I’ve never worked in healthcare sector don’t know how serious her conduct would be regarded), but then she included in her statement of claim the discipline over the “Maxolon incident” as one of the causes of negligence by the employer that had contributed to her psychiatric injury. It seemed stupid by her/her lawyers to include such an incident in their negligence claim, if they had left it out she may have had a chance of winning. Whilst there appears to be validity to her other claims, no judge would ever find in favour of a nurse that stole drugs for her own use, injects them into herself while at work and is then disciplined as a consequence and then claims contribution to her psych injury as a result of the hospital “negligently” disciplining her.

  5. How do “modern clinical practice standards” relate to the workplace? That Judge was bending over backwards to protect the employer. The Worker is lucky she’s got away from there. I hope her legal team appeal.

  6. Clearly this is a mobbing case and the result is always depression and anxiety for the employee.

    This seems to be an intricate case and I think maybe the plaintiff’s Lawyer didn’t point out the right arguments either they decided to give it up along the way because there was too much work to do!

    Xchangingvictim April 15, 2013 at 9:15 am