The primary proceedings concerned a claim by the appellant (Dr Christos) against his former employer, Curtin University, (Curtin) for damages for psychiatric injury allegedly caused by Curtin’s breach of contract, negligence and breach of statutory duty.
In general terms, Dr Christos, whose employment was terminated by Curtin with effect from 28 October 2004, alleged that Curtin was in breach of contract and was negligent in the period 20 February 2003 to 28 October 2004:
(a) for failing to assess and resolve, in accordance with Curtin’s grievance and dispute resolution policies and procedures, several grievance complaints made by Dr Christos against Curtin and members of its staff over a period commencing on 1 May 2002; and
(b) in that Curtin and various staff members bullied, harassed and victimised him.
It was not in dispute that Curtin owed Dr Christos a duty of care. Nor was it in dispute that Dr Christos was psychiatrically disabled. The central issue in dispute was whether Curtin breached its duty of care and, if so, whether the breach was ‘a‘ cause of Dr Christos’s ongoing psychiatric illness.
The primary judge observed that a number of the events pleaded by Dr Christos had occurred prior to six years before the issue of the writ commencing the proceedings before him, namely on 20 February 2009, and that to the extent that Dr Christos sought to rely on breaches of contract or tortious damage which occurred prior to 20 February 2003, the claims were statute barred. However, his Honour recognised that the grievance proceedings that were set in train prior to 20 February 2003 were still of some significance because Dr Christos alleged that Curtin breached its obligations in failing to resolve the early grievance complaints.
In his findings, the primary judge stated that:
“I find that Curtin through its staff did not bully, victimise or harass the plaintiff. Whether there is a breach of a duty of care must depend on a finding that Curtin’s responses to the plaintiff were appropriate and, in the circumstances, reasonable. In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.”
Dr Christos appealed and his senior counsel indicated that the appeal did not involve any challenge to the judge’s findings as to the absence of bullying or victimisation. Senior counsel said, in effect, that the appeal only concerned Dr Christos’s case in relation to the failure to assess and resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2014 and summarised the substance of his case as follows:
- In the relevant period from 20 February 2003 to 28 October 2004, a reasonable person in Curtin’s position would have foreseen a risk which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos’s grievances (lodged in 2002 and subsequently) would cause or aggravate a psychiatric injury in Dr Christos;
- In order to avoid that risk of psychiatric injury, a reasonable person in Curtin’s position would, in the relevant period, have progressed and sought to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
- In the relevant period, Curtin failed to progress and seek to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
- That failure, in the relevant period, to progress and seek to resolve Dr Christos’s grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.
None of the above grounds were established by Dr Christos and the appeal was subsequently dismissed for the following reasons:
- It was open to the primary judge to conclude that even if Curtin had taken adequate steps to resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2004, that would not in itself have made any material difference to his psychiatric condition, because only a resolution satisfactory to him would have made any difference to his psychiatric state at the time. In light of that finding, there was no suggestion that had the grievance process been completed within the relevant period, Dr Christos’s grievances would have been resolved to his satisfaction; and
- The evidence of Dr Manners to which Dr Christos referred was in general terms, and was not directed to the specific question of whether delay in resolution of the grievances from 20 February 2003 to 28 October 2004 materially contributed to Dr Christos’s psychiatric injury. That evidence does not rise to the point where this court could say that the judge erred in concluding that the absence of resolution of grievances in the period 20 February 2003 to 28 October 2004 in fact made a material contribution to the nature or duration of, or materially exacerbated, Dr Christos’s adjustment disorder, or was a cause of his subsequent depressive disorder.
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