Eaton v TriCare (Country) [2016] QCA 139

Further to the earlier post, the trial decision was overturned on appeal, based on the findings that the pleaded case was not one of an intentional tort, but rather vicarious liability for the harassing and belittling conduct of Ms Harrison, which the court found amounted to a breach of the duty of care and caused the psychiatric condition.

Philip McMurdo JA (Fraser JA and Boddice J concurring):

[21] In my respectful view, the trial judge misunderstood the content of the appellant’s case. The statement of claim unambiguously alleged that the respondent was vicariously liable for the conduct of Ms Harrison and did so under the heading “The defendant’s breach of duty of care and breach of contract”. The claim itself was expressed as one for damages for the respondent’s negligence or breach of contract. Putting to one side that alternative contractual claim (which was not materially different from the claim in negligence), the pleaded case was that the respondent was liable in negligence by being vicariously liable for Ms Harrison’s conduct and the appellant thereby alleged that Ms Harrison herself had been negligent.

[22] His Honour misunderstood the case to be that Ms Harrison had engaged in “intentional wrongdoing”. He described the pleaded allegations as amounting to a case that “Harrison deliberately conducted herself in a way that would amount to workplace harassment”.[21] As already noted, it was not the appellant’s case that Harrison had committed an intentional tort. It is true that the case was that Ms Harrison had deliberately conducted herself in certain ways, but there was no allegation that she had done so intending to cause harm or being recklessly indifferent to whether harm occurred.

[26] It is evident that these misunderstandings of the appellant’s case affected his Honour’s consideration of the content of the respondent’s duty of care as well as the question of whether such a duty was breached. His Honour’s reasoning on these questions was in error at least for his misunderstanding of the appellant’s case. It is then for the appellant to establish here that upon the evidence and consistently with the findings by the trial judge as to the primary facts, the respondent should have been found liable.

[36] At paragraph [151] of the judgment, his Honour considered circumstances which he said were relevant to the existence or otherwise of a duty of care. I have set out that paragraph above, from which it appears that his Honour did not identify any fact or circumstance, other than his finding that the risk of a psychiatric illness was not reasonably foreseeable, which would explain why the alleged duty of care was not owed. There was no circumstance, such as the imposition of an undue burden upon the respondent, which made it unreasonable that a duty should be imposed in the case of a predictable risk. In my conclusion the respondent did become subject to a duty to take reasonable care to avoid the risk of a psychiatric injury to the appellant.

[61] On the findings of the trial judge as to the behaviour of Ms Harrison towards the appellant, in my view the respondent, through Ms Harrison, breached its duty. Reasonable care required that Ms Harrison not behave towards the appellant in a harassing and belittling fashion. That had a real likelihood of causing such stress to the appellant that in her vulnerable condition, she would develop a psychiatric illness. The real likelihood of that occurring was well explained in the evidence of the psychiatrists.

[71] In summary, the matters raised by the respondent’s notice of contention do not provide a basis for disagreeing with the reasoning of the trial judge on this question of causation. On the facts found by his Honour about Ms Harrison’s conduct, it constituted a breach of the respondent’s duty of care. That conduct, in the context of the appellant’s excessive workload, caused the development of the appellant’s psychiatric illness.

David Cormack – Brisbane Barrister & Mediator


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