Duty of care and vicarious liability explored in WorkCover decision
Crown Law has defended the State in a recent consolidated hearing of two matters brought by plaintiffs against their employer, Education Queensland.
The plaintiffs alleged that they developed psychiatric injuries as a result of the publication of a novel in which they thought they were depicted. The claim against their employer was for a breach of duty in failing to prevent advertising of the novel on a staffroom noticeboard, failing to remove the author’s wife (also a teacher at the school) in a timely manner, and for vicarious liability for the actions of the author’s wife and the school’s business services manager.
Judge McGill of the District Court handed down his judgment for the defendant in both matters.
The plaintiffs were a school teacher (the female plaintiff) and a groundsman (the male plaintiff) at the same school who were engaged in a relationship. In 2006, the plaintiffs found a note under the windscreen wiper of the female plaintiff’s car which was parked in the school parking lot.
The anonymous note expressed in “graphic terms a desire for sexual activity” with the female plaintiff. On a separate occasion, the male plaintiff found his car had been scratched with rude words while he was having coffee with the female plaintiff at a suburban shopping centre. The plaintiffs also received prank phone calls when they were at home together. These incidents were reported to the school principal and to police.
The school principal advised the plaintiffs that he had received anonymous phone calls suggesting the plaintiffs had engaged in inappropriate conduct at the school. He did not believe the caller and told the plaintiffs as much, but had advised the department as a matter of course.
In late 2008, it became known that the husband of another teacher at the school was writing a novel based on a primary school. The teacher indicated that many of the other teachers at the school would be in it. She placed an advertisement for the book on the staffroom noticeboard.
The book was subsequently published and whilst the plaintiffs claimed they did not read the entire book, they came to believe they and their relationship were depicted as characters and as a subplot in the book. Many of the other teachers also found themselves depicted as characters in the book, in some instances the same characters as those said to be the plaintiffs.
The female plaintiff and another teacher advised the principal they were uncomfortable working with the author’s wife as they felt she had breached the Code of Conduct. They alleged the wife had accessed personal information about the other teachers and had fed that information to her husband as material for the novel. The principal raised the issue with the department and advised the teachers that they would need to work with the author’s wife for the time being and directed them to the Employee Assistance Program.
The book was then promoted in the Queensland Teachers’ Union Journal and teachers were encouraged to send in their anecdotes as material for the sequel. The teachers then requested the author’s wife be transferred from the school, which occurred almost immediately. As a result of the allegations about the misuse of personal confidential information, the department conducted an inquiry in which several teachers and staff, including the plaintiffs, were interviewed.
In January 2010, flyers promoting the book were distributed by letterbox drop. The flyers indicated that the characters in the book were based on the plaintiffs. The plaintiffs demanded the school liaise with police about the letterbox drop and demanded the department pay for family counselling for them and the male plaintiff’s daughters. The school agreed to liaise with police but declined to pay for counselling in addition to the counselling offered by the Employee Assistance Program.
Some time later, after a breakdown in the relationship and a subsequent reconciliation, the male plaintiff was asked by the school’s business services manager to take a lunch break at a different time from the students so that he could be available to perform tasks that might be required during the students’ lunch hour. The plaintiffs alleged this was done to keep them from seeing each other at lunch time.
The male plaintiff later ceased working at the school and the female plaintiff was transferred to another school and continued working until 2011. The plaintiffs have since married and immigrated to the United States with the male plaintiff’s daughters. Neither of the plaintiffs is currently working.
Judge McGill found that most of the matters that the plaintiffs found upsetting were matters for which the defendant was in no way responsible – a note on the car windscreen, harassing phone calls, damage to the car, publication of the book and distribution of the leaflet in letterboxes.
There were four matters His Honour found could fall within the duty of care of the defendant:
- the acquiescence to advertising the novel by placing a flyer on the noticeboard in the staffroom
- transfer of the author’s wife
- comments made to ridicule the plaintiffs
- liability for the actions of the author’s wife and the business services manager.
As to the advertising of the novel, Judge McGill found that reasonable care did not require that steps be taken to prevent the promotion of the book as the real risk of psychiatric injury from publication of the book was not within the control of the defendant and did not turn on whether or not a flyer was displayed in the staff room.
His Honour found that preventing the author’s wife from placing the flyer on the staff noticeboard would be ineffectual in avoiding the risk of psychiatric harm and that even if there was a duty of care, it was not breached. His Honour found the plaintiffs failed to prove causation as there was no reason to think there would have been any meaningful difference between what happened and what would have happened if the flyer had not been placed on the staff noticeboard.
As to the transfer of the author’s wife, His Honour noted that, given she moved voluntarily to a different school quite quickly after the beginning of the school year following the publication of the book, it is difficult to see what difference it might have made if she had been transferred even sooner. His Honour further noted that in any event, the wife, as a teacher, was entitled not be transferred against her will without the proper processes being followed, that this process could have taken some time and the notion that the transfer could have been completed and the author’s wife moved within a few days was unrealistic.
Judge McGill also ruled there was no duty by way of an obligation to take reasonable care for the plaintiff’s psychiatric health, which required the defendant to act towards the author’s wife in a way inconsistent with the duty to accord procedural fairness to her and that duty was plainly inconsistent with any such alleged duty to the plaintiff. His Honour noted there was no risk of repetition of the injurious behaviour had the wife been allowed to remain at work and found no duty was owed, nor any breach of it.
As to the allegations the defendant had exposed the plaintiffs to ridicule and negative opinions in the workplace, His Honour found the position was similar to that in Rogerson (New South Wales v Rogerson  NSWCA 346). His Honour noted there was no suggestion in the evidence of any bullying and harassment by a superior and no suggestion that the defendant had, in some way, countenanced a campaign of bullying or harassment by some fellow employee. His Honour found no negligence on the part of the defendant regarding these allegations.
As to the allegations of vicarious liability for the actions of the author’s wife, Judge McGill noted that the matters relied on were communicating information received by her in the course of her employment at the school to her husband, and advertising the book at the school. Neither of those matters had anything to do with the author’s wife’s employment and they were not conducted in the course of or for the purpose of her employment. His Honour therefore found that this allegation was not made out.
His Honour noted that a good deal of attention was paid to a meeting at the school when the plaintiffs asked for certain support which, according to them, was refused. It was not pleaded as negligence by the defendant, but his Honour found that it cannot be the case that reasonable care means that there must be immediate agreement to anything sought by the plaintiffs in order to avoid the plaintiffs becoming upset by the failure to secure agreement. His Honour found it was not the responsibility of the school to liaise with police about the letterbox drop.
As to the request for counselling, Judge McGill further noted that the defendant had in place a system by which counselling was made available to employees and just because this was not the sort of counselling the plaintiffs were seeking, it is not obvious that reasonable care required more than a willingness to provide some reasonable level of counselling.
Finally, His Honour found that the request that the male plaintiff take his lunch hour at a different time, whilst it had the effect of separating the plaintiff, was not made for that reason. Further, it was within the employer’s rights to ask an employee to take a lunch break that suited operational requirements.
Keys points for employers to consider
Judge McGill noted that “it ought not be necessary for me to point out that the defendant can have no liability for any psychiatric injury which arises as a result of the actions of those for which it is not responsible”.
In the judgment, His Honour analysed the content of the duty of care and the risk of harm eventuating when determining whether reasonable care requires a certain course of action.
This case is a reminder that not all actions of employees will be found to visit vicarious liability on their employers. Actions taken within the workplace context are not always done within the course of, or for the purpose of, the employee’s employment.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 27 August 2015
Author: Rachael Murray