![Supreme Court Of Queensland Considers Employer’s Duty Of Care In Circumstances Of A Breach Of Confidentiality Kemp V Gold Coast Hospital And Health Service [2024] Qsc 259](https://littleslawyers.com.au/wp-content/uploads/elementor/thumbs/Supreme-Court-of-Queensland-considers-employers-duty-of-care-in-circumstances-of-a-breach-of-confidentiality-Kemp-v-Gold-Coast-Hospital-and-Health-Service-2024-QSC-259-r35y83j7sjk3kx70bv63emq3377ejpg3jgfqxd07a0.jpg "Supreme Court of Queensland considers employer’s duty of care in circumstances of a breach of confidentiality Kemp v Gold Coast Hospital and Health Service [2024] QSC 259")
Supreme Court of Queensland considers employer’s duty of care in circumstances of a breach of confidentiality: Kemp v Gold Coast Hospital and Health Service [2024] QSC 259
Background
The plaintiff, Jamie Andrew Kemp, was employed by the defendant, Gold Coast Hospital and Health Service, as a radiographer and sonographer.
On 12 December 2017, the plaintiff made a complaint on the condition of anonymity to the Office of the Health Ombudsman (‘OHO’) in respect of the conduct of certain individuals employed by the defendant. Thereafter, the OHO erroneously informed the defendant that the plaintiff was the individual that had made the complaint.
The plaintiff pleaded that following OHO’s erroneous disclosure of his identity to the defendant, it became known within the larger medical imagining department of which he was a member that he had been the one to make the complaint. This lead, to the plaintiff’s mind, to him being “subjected to behaviour from staff within the Department which amounted to victimisation, retribution, bullying, harassment, and abuse”. It was alleged that the plaintiff sustained a psychiatric injury as a result of this conduct.
The plaintiff commenced proceedings, claiming damages pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (QLD) in the sum of $1,305,481, but reduced to $1,275,230.74 following the parties agreeing on special damages.
Position of the Parties: Scope of Duty of Care
The plaintiff pleaded that the defendant had breached the duty of care that it owed him by virtue of it: –
- Failing to take reasonable care for his safety, including with respect to psychiatric injury;
- Failing to provide a safe system of work, specifically with respect to communication as between staff within the Department;
- Failing to provide a safe place for the plaintiff to work;
- Exposing the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care;
- Either causing, permitting, or allowing the plaintiff’s complaint to become common knowledge amongst the department, in circumstances in which the complaint ought to have been kept confidential;
- Being vicariously liable for its employees or agents engaging in the offending behaviour, which was likely to cause a psychiatric reaction, which might include a psychiatric injury;
- Either causing, permitting, or allowing its employees to engage in the offending behaviour in circumstances in which a reasonable employer would have prevented that conduct;
- Failing to properly supervise its employees so as to prevent conduct which was reasonably likely to cause a psychiatric injury;
- Failing to develop and implement a proper or adequate procedure for dealing with complaints received through the OHO;
- Failing to properly train or supervise its employees to ensure that they treated other staff in a manner which did not create a risk of psychiatric injury; and
- Failing to take any, or any adequate, steps to assess the risks of psychiatric injury to its employees.
The defendant pleaded that its duty of care did not extend to requiring workers to greet one another, requiring workers not to gossip, nor to stamp out rumours. The defendant also denied that the inappropriate conduct of members of the plaintiff’s Department had occurred. It was the defendant’s case that the only members of the Department that were aware of his identity as the complainant were a line manager and the acting service director of diagnostic services. The defendant denied each alleged breach of duty of care, relying amongst other things on the existence of its HR department and grievance and complaint procedure, which the plaintiff did not engage with, and the lack of any contemporaneous reporting by the plaintiff in respect of the alleged offending behaviour of his colleagues.
Decision
The plaintiff’s claim was dismissed.
Many of the plaintiff’s allegations in respect of the conduct of his colleagues were predicated upon his sole evidence in respect of those alleged events, which was largely at odds with the evidence provided at trial by other employees within his Department. As observed by Sullivan J, it was agreed by the parties that the plaintiff’s evidence and the evidence of the defendant’s witnesses as to the events underlying the alleged breaches of the duties of care were “mutually inconsistent”. Problematically for the plaintiff, his credit was called into question a number of times throughout the courts’ reasoning, with the court preferencing the contrary evidence of the defendant’s witnesses on various occasions.
The court opined that it was not reasonably foreseeable that someone in the plaintiff’s position would be vulnerable to the risk of a recognised psychiatric illness, as opposed to mere psychological disturbance, if their identity was disclosed to the Department. In the court’s view, it would be unreasonable to expect that a complainant could unilaterally impose a blanket ban on the disclosure of their identity. In the alternative, the court found that there was no breach as, as a finding of fact, the plaintiff’s identity was not disclosed to the Department writ large.
The court was unconvinced by the plaintiff’s submission that the defendant ought to have taken steps to quell gossip or rumour that the plaintiff was the complainant. Sullivan J noted that, consistent with the reasoning in Queensland Corrective Services Commission v Gallagher, certain circumstances may give rise to such a duty, the plaintiff’s circumstances did not give rise to such a duty. In support of this conclusion, the court referred to its finding that the defendant was not aware that such gossip was occurring and that the plaintiff did not inform the defendant that the gossiping was occurring.
Whilst the court found that certain members of the department distanced themselves from the plaintiff following the complaint, it concluded that no victimising bullying, retribution, or harassment had occurred.
The court did find that the defendant would have owed a duty to take reasonable care to devise and implement an adequate procedure for dealing with complaints of conduct of a type alleged by the plaintiff. However, it held that there was no breach as the defendant had a complaints system that could be implemented by the HR department if prompted.
Sullivan J concluded that even if the findings in relation to each individual breach were incorrect, any breach could not be causative of loss given the finding that the pleaded inappropriate conduct did not occur. Further, Sullivan J opined that there was no breach given the plaintiff never enlivened the defendants’ procedures and policies in respect of the alleged offending conduct.
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