A Long Saga Ends With Dismissal of Appeal in Relation to Claimed Psychiatric Injury


CHRISTOS V CURTIN UNIVERSITY OF TECHNOLOGY [2017] WASC 110

The appellant’s damages claim and the appeal were concerned with dealings between the appellant, a lecturer, and his employer, Curtin University between 2002 and when his employment was terminated in 2004.

The appellant’s claims involved allegations of psychiatric injury due to bullying and harassment and various other claims with respect to the conduct of the University, plus its failure to deal with his grievances in accordance with the grievance resolution policy.

The trial judge dismissed the action, finding amongst other things that the risk of psychiatric injury had not been foreseeable. He also found that Curtin had acted reasonably and had not bullied or harassed the appellant and that its staff had not caused or materially contributed to the appellant’s psychiatric disability.

The appellant’s case on appeal was based on the premises that:

  • The University would have foreseen that its conduct in dealing with the appellant’s grievances could cause him psychiatric harm.
  • In order to avoid psychiatric injury to the appellant, it should have progressed the grievance procedure.

The grounds of appeal were technical, alleging, amongst other things, that the judge had not applied the right test of foreseeability.

An equally technical further ground alleged that the judge erred by misdirecting himself that a finding of bullying and harassment was necessary in order to make a finding that the University had breached its duty of care.

The Court of Appeal accepted most of the numerous and detailed findings of fact made by the judge. The distillation of those findings was that the University had not bullied and harassed the appellant and that the failure of the grievance procedure to deal with the matter had not been materially caused by neglect on its part.

By a majority, the Court upheld the first ground of the appeal, namely that the risk of psychiatric injury was foreseeable.   In this, two out of the three judges of appeal disagreed with the trial judge.

However, it was also necessary for the employer to establish that the failure of the respondent to progress the grievance procedure and resolve the grievances was a material cause of the appellant’s injury and in this, the Court of Appeal agreed with the trial judge that such a causal relationship was not made out.

The failure of the appeal on this critical issue of causation effectively determined the outcome.

Overall, the judge’s findings of fact were at the heart of the matter. With the exception of his findings on foreseeability, all judges on the Court of Appeal agreed with his conclusions and did not find any errors in the approach taken by the trial judge on foreseeability to have adversely affected the result.

The issue of foreseeability was evidently the one that gave rise to the greatest scope of differing approaches amongst the judges (trial and appeal), but with reference being made by all judges to the relevant test being whether there was a reasonably foreseeable (in the sense of not far-fetched or fanciful) risk of the conduct in question causing or aggravating the psychiatric injury.

Conclusion

Although a useful case to illustrate the assessment to be made of the operative factors in an action for damages for psychiatric injury, the case on appeal was in effect an argument about the findings of fact made at first instance, with which the Court of Appeal found little fault.

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