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HG Insurance & Risk Alert: Couple sue employer for psychiatric injury caused by contents of novel - 5 May 2015

In this alert, Senior Associate Anna Hendry and Solicitor Abbey Wilkinson discuss a recent decision from the Queensland District Court involving a couple who were employed by the Department of Education.  Both alleged that they sustained psychiatric injuries due to the publication of a novel which allegedly depicted their relationship.[1]

Facts

During 2006 a relationship developed between Ms Lee, a teacher, and Mr Swindles, a groundsman at the same Brisbane school, and by September 2006 the relationship was made public. Ms Lee and Mr Swindles were subject to unwanted attention in the form of:

  • A letter placed under the windscreen wiper of Ms Lee’s car purporting to be a note from Mr Swindles stating a desire for sexual activity with Ms Lee (the windscreen letter).  The note also contained a comparison between Ms Lee and a young girl which implied Mr Swindles had an interest in young girls.  Mr Swindles denied that he wrote this letter.
  • The receipt of anonymous phone calls by the school accusing Ms Lee and Mr Swindles of engaging in sexual activity at the school.
  • The receipt of harassing or prank phone calls when Ms Lee and Mr Swindles were together.
  • The vandalisation of Mr Swindles’ car while he was meeting with Ms Lee at a suburban shopping centre.

As a result of these events, Ms Lee and Mr Swindles suffered from a range of psychological issues and both received treatment.In August 2008, Ms Lee’s father passed away and she suffered a recurrence of a long standing eating disorder for which she also received treatment.

In January 2009, the husband of another teacher at the same school published a book which was allegedly based on events that had taken place at the school, about which the author had allegedly been told by his wife.

The book was advertised on the notice board in the staff room and the author’s wife discussed and advertised the book around the school.  It was also advertised in the Queensland Teachers’ Union journal in February 2009.

Several staff members, including Ms Lee and Mr Swindles, expressed concern about working with the author’s wife and she was later transferred to a different school.

In April 2009 Ms Lee and another teacher sought guidance on how to respond to questions being raised by other staff members and parents in relation to the book.  Subsequently, the principal sent an email setting out an appropriate response that could be adopted.

In January 2010 a leaflet was placed in Ms Lee’s letterbox, and neighbouring letterboxes, publicising the book.  Ms Lee and Mr Swindles were both identified in the leaflet as being characters in the book. 

During the relevant time, the school asked Mr Swindles to change the time that he usually took his lunchbreak for operational reasons. This was perceived by him and Ms Lee as an attempt to separate them.

Judgment

Ms Lee and Mr Swindles sued their employer, the Department of Education (Department), alleging it was responsible for their psychiatric injuries. Because the claims were so intertwined, they were heard together.

The court disposed of several of the plaintiffs’ allegations on the basis that the Department had no control over the relevant act. For instance, the Department did not know who was making the prank phone calls or who had distributed the flyers, and therefore could not be held liable for those acts. The remaining allegations were as follows:

  • The Department failed to take reasonable care by allowing the book to be advertised in the staffroom.  In relation to this allegation, His Honour found:
    • The promotion of the book did not give rise to a foreseeable risk of psychiatric injury because the Department was at that stage unaware of the contents of the book. 
    • The plaintiffs were likely to have been alerted to the existence and contents of the book even if it had not been so advertised.
    • It was not the advertisement of the book but its actual publication that caused Ms Lee’s psychiatric injury and the Department could not control the publication of the book. 
  • The Department failed to take reasonable care by requiring the plaintiffs to work at the same school as the author’s wife. In relation to this allegation, His Honour found:
    • The author’s wife was entitled not to be transferred to another school against her will without the proper processes being followed.
    • The author’s wife was voluntarily transferred quite quickly after the beginning of the school year following the publication of the book. 
  • The Department was vicariously liable for the actions of the author’s wife in communicating information (which was allegedly obtained via paperwork regarding the windscreen letter) to her husband and advertising the book at school. In relation to this allegation, His Honour found the Department was not vicariously liable for her conduct because it was not in the course of or for the purpose of her employment.
  • The Department failed to properly respond to the plaintiffs’ request for family counselling and assistance liaising with the police regarding the flyers. In relation to this allegation, His Honour found:
    • The Department adequately responded to the request for counselling by directing the plaintiffs to the employee assistance program. Further action was not reasonably required.
    • The request for assistance liaising with the police was not reasonable as the discovery of the flyers and subsequent police investigation was unrelated to the plaintiffs’ employment.
  • The Department was unreasonable in its requirement that Mr Swindles take his lunchbreak at a different time. In relation to this allegation, His Honour found the requirement and the way that it was dealt with was not unreasonable.

In light of the above findings, neither plaintiff was successful.

Key points

  • For an employer to be held liable for psychiatric injury to a worker there must be:
    • A foreseeable risk of psychiatric injury from the alleged act or omission, not just a foreseeable risk of anger or upset;
    • A finding that the employer had control over the alleged act or omission or was vicariously liable for that act or omission;
    • A finding that the act or omission was unreasonable in the circumstances; and
    • A finding that the act or omission caused the alleged injury.
  • The duty to take reasonable care does not require the employer to simply acquiesce to any request made by the worker. The request must in itself be reasonable in all the circumstances.

For more information of discussion, please contact HopgoodGanim's Insurance & Risk team. 

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[1] Lee & Anor v State of Queensland [2015] QDC 83

 

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