The District Court of New South Wales has accepted a late psychological damage claim from a bullied employee, because it found her mental health condition had contributed to the delay.
NSW District Court Judge Leonard Levy allowed the former personal carer to lodge her $1.65 million claim more than 9 months after the 3-year statutory time limit, accepting that she had incurred serious and debilitating psychological illness which included a major depressive disorder, post-traumatic stress disorder, a generalised anxiety disorder, a panic disorder, and agoraphobia.
The carer was employed by Western Earthmoving between 2011 and 2015 to care for the now-deceased founder of the company, who suffered with dementia at the time of her employment.
The employee alleged that the deceased man and his daughter subjected her to bullying, intimidation, harassment, ostracism, as well as demeaning, persecutory, verbally aggressive, and threatening behaviour, which caused the employee the aforementioned psychological damage.
But Western Earthmoving denied that it employed the carer, even though it paid the carer to work for the founder.
The company accepted that the worker had incurred a psychological injury, but denied all alleged breaches of duty of care, and in the alternative alleged that the employee herself was contributorily negligent.
However, Judge Levy said that the carer’s claim of the company’s negligence was supported by “a compelling expert liability report” she submitted, as well as “the considered expert opinion” of a consultant psychiatrist.
“The expert’s summary was that [the carer] was required to work in a high-risk environment with a man known to have violent and abusive behaviours, and where she was also bullied by other company personnel,” Judge Levy said.
“The expert concluded that [Western Earthmoving] seemed to have shown little if any concern for the health and safety of [the carer], and that to the extent that any precautionary safety measures may have been taken, they were ineffective.
“In addition, [the carer’s] claim of causation of psychological harm is cogently supported by the considered expert opinion from [her doctor], a consultant psychiatrist, in his report dated 16 October 2018.
“[The doctor’s] report provides compelling descriptive evidence that the nature and conditions of [the carer’s] work as the deceased’s carer caused her to suffer a severely disabling and recognisable psychiatric injury that was reasonably foreseeable, and which now has a poor prognosis for recovery.”
Judge Levy noted that the carer was diagnosed with severe post-traumatic stress disorder shortly after leaving her position and it was only after she sought legal advice about unpaid leave and superannuation entitlements one year later that she “began to recognise and engage with the need to pursue her legal rights”.
“It is understandable that she took an avoidant approach to matters that were likely to have provided further triggers for her anxiety,” Judge Levy said.
“I am satisfied that the described circumstances represent a sufficiently adequate and satisfactory explanation for the delay.
“I find that [the carer] has satisfied the requisite elements necessary for the exercise of the discretion sought pursuant to s 151D of the WC Act.”
Judge Levy ordered that Western Earthmoving pay for the carer’s costs of the notice of motion.