A plaintiff was awarded $2.3 million in damages after a fabricated email depicting her as a racist was tabled in parliament.
In issue
- Whether a local council failed to take reasonable care to avoid foreseeable risk of injury to its employee that resulted from the malevolent conduct of third parties.
The background
The plaintiff commenced employment with the Cook Shire Council in 2006. She rose to the position of Business Services Manager and subsequently the position of Governance and Risk Manager. Her role primarily involved implementing the council’s compliance with the laws and regulations binding local government, which included local tenders for council related work and assets.
The council leased a waterfront property to Cayman Cruises Pty Ltd (Cooktown Cruises). However, during the term of the lease, Cooktown Cruises had suffered losses and incurred significant debt due to a variety of factors. Its principals advertised the sale of the business in late 2011, hoping to pay their outstanding rent and rates to the council from the proceeds. Discussions were had with Gungarde Community Centre for Aboriginal Corporation (Gungarde) about purchasing the business. Gungarde expressed interest provided that the purchase would involve a 10-year lease.
The plaintiff attended a meeting with representatives from Gungarde and Cooktown Cruises to explain that the prospective purchase of the business would require the lease to be put to public tender. Gungarde then lost interest in purchasing the business.
Mrs Roberson, a principal of Cooktown Cruises, had made repeated requests that the outstanding rates and rents which were owed be waived by the council. As the council had not responded, a complaint was made to the Ombudsman.
This prompted the plaintiff to send an email to Mrs Roberson at Cooktown Cruises, in which the plaintiff apologised for the delay in responding to Cooktown Cruises and requested additional documentation. The council’s CEO was copied into the email.
Three years later, a fabricated version of this email purportedly from the plaintiff addressed to internal council staff and containing racist comments was generated. The effect of the email was to suggest the plaintiff was involved in trying to prevent Gungarde from taking over the lease. The plaintiff came to be aware of the existence of the fabricated email and denied having authored it.
The email was then sent as part of a dossier to (then independent) Rob Pyne in relation to a call for an inquiry into local government corruption, and was eventually tabled in 2017 under parliamentary privilege.
The result of the public 'demolition' (as per Henry J at [3]) of the plaintiff’s character was a lasting psychiatric injury and consequent inability to continue working.
The plaintiff alleged that the council breached its duty of care in failing to avoid the perpetuation in the public domain of the allegation that she was the author of the fabricated email.
The decision at trial
The Supreme Court of Queensland held that the email was fabricated.
The council argued that the scope of an employer’s duty of care cannot extend to guarding against foreseeable risks of injury to employees posed by the conduct of third parties, because such conduct is outside of its control.
However, the Court held:
The Court held that the council knew or ought to have known that the email had not been authored by the plaintiff and that she had been targeted as a council employee involved in the Cooktown Cruises matter. The court also held that the council ought to have appreciated that the controversial nature of the fabricated email meant that there was a risk it would be disseminated to the public.
Henry J accepted that the council had no control over the decision-making of Mr Pyne. However, the Court held that the council should have taken protective steps to properly investigate and reveal the necessary facts which demonstrated the fabrication of the email to those seeking to rely on the email in a timely fashion. Had this occurred, it would have been unlikely that those third parties would have persisted to the stage that the fabricated email was provided to and tabled by Mr Pyne.
The Court held that the council breached its duty of care and that the breach was causative of the plaintiff’s injuries. Despite having a pre-existing history of mental issues, the plaintiff was awarded over $2.3 million in damages.
Implications for you
This decision serves as a reminder that employers may be liable for injuries to their employees occasioned by a malevolent act of a third party in circumstances where the employer has the power or ability to take proactive steps to avoid the risk of foreseeable injury to the employee.
The decision also highlights the importance of conducting thorough and objective internal investigations in matters concerning employees. Henry J criticised the council for failing to take what it considered were simple steps to identify the email as a fabrication.
